Construction delays chapter four types of construction delays

CHAPTER FOUR

Types of Construction Delays

WHAT IS A DELAY?
There are a number of definitions for delay:
Something that happens later than expected
Something that is performed later than planned
An action that is not timely
Each of these definitions can describe a delay to an activity of work in
a schedule. On construction projects, it is not uncommon for delays to
occur. It is what is being delayed that determines if a project or some
other deadline, such as a milestone, will be completed late. Before any
discussion of delay analysis can begin, a clear understanding of the general
types of delays is necessary. There are four basic ways to categorize delays:
• Critical or noncritical
• Excusable or nonexcusable
• Compensable or noncompensable
• Concurrent or nonconcurrent
The chart shown in Fig. 4.1 presents a general overview of how the
excusable and nonexcusable categories of delay can be viewed. Note that
this figure represents the interpretation of a typical construction contract.
However, the circumstances that may be characterized as excusable or
compensable can vary significantly, depending upon the contract. The
discussion that follows elaborates on this simple summary chart.
When determining the effect of a delay on a project, the analyst must
determine whether the delay is critical or noncritical. The analyst must
also determine if delays are concurrent. All delays that are identified in
the analysis will be either excusable or nonexcusable. Excusable delays
can be further divided into compensable or noncompensable delays. This
chapter provides basic definitions of these types of delays. Concurrent

delays will be addressed in a later chapter.
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Construction Delays.
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Figure 4.1 Descriptions of excusable, nonexcusable, compensable, and nonexcusable
delays.

CRITICAL VERSUS NONCRITICAL DELAYS
In any analysis of delays to a project, the primary focus is on delays
that are critical to some element of the work, those are delays that will
affect the completion of that work element. In most cases, the completion
of the project is the focus of the analysis. For simplicity, we use the project completion as the reference point for our delay analysis discussions in
this book. In some cases, the completion of a particular event, often
referred to as a milestone, will be the focus of an analysis. But, the same
concepts that apply to the analysis of delays to the project completion will
apply to the analysis of delays to a milestone.
Critical delays are those activity delays that affect the progress of the

project in such a way that result in a predicted delay to the project completion date. However, many delays occur that do not delay the project
completion date. Delays that affect the project completion are considered
critical delays, and delays that do not affect the project completion are
considered noncritical delays. The concept of “critical” delays emanates
from Critical Path Method (CPM) scheduling. While the determination
of the critical path and the identification of critical activities is a major


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feature of CPM scheduling, all projects, regardless of the type of schedule,
have “critical” activities.
A key concept of CPM scheduling is that only delays to the critical
path result in a delay to the scheduled project completion date. This is
because the critical path is the longest path through the schedule network
and, as such, is the path that determines the length of the project and the
date upon which the project is predicted to be complete. Thus, the delay
to the completion date is a predicted delay based on the then-current
project plan. A change in that plan may either mitigate or exacerbate that
delay.
Determining which activities truly control the project completion
date depends on the following:
• The project itself
• The contractor’s plan and schedule (particularly the critical path)
• The requirements of the contract for sequence and phasing
• The physical constraints of the project—how to build the job from a
practical perspective
Regardless of how one analyzes a project and the schedule to find the

delays, there is one overriding criterion: The analysis must accurately
consider the contemporaneous information when the delays were occurring. “Contemporaneous information” refers to the daily reports, the
schedule in effect, and any other job data available that show the circumstances at the time of the delays. Proper research and documentation
eliminates the “but-fors” and any other hypotheses contrived to advance
predisposed conclusions or desired results.

EXCUSABLE VERSUS NONEXCUSABLE DELAYS
Excusable delays
All delays are either excusable or nonexcusable. These categories are typically defined by the contract. Generally, an excusable delay is a delay that
is due to an unforeseeable event beyond the contractor’s control.
Normally, based on common general provisions in public agency specifications, delays resulting from the following events would be considered
excusable:
• General labor strikes
• Fires


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Floods
Acts of God
Owner-directed changes
Errors and omissions in the plans and specifications
Differing site conditions or concealed conditions
Unusually severe weather
Intervention by outside agencies (such as the EPA)
Lack of action by government bodies, such as building inspection
Constructive changes
These conditions may be reasonably unforeseeable, not within the
contractor’s control, and not the contractor’s fault or responsibility. When
a delay is determined to be excusable, the contractor will be entitled to
an extension of the time to complete the project work.
The characterization of a delay as excusable must be made within the
context of the specific contract. The contract should clearly define
the factors that might justify entitlement to a time extension to the contract completion date. For example, some contracts may not allow for
time extensions caused by weather conditions, regardless of how unusual,
unexpected, or severe, even though such delays would be beyond the
control of the contractor.

Nonexcusable delays
Nonexcusable delays are events that are within the contractor’s control,
are the contractor’s responsibility, or that are foreseeable. These are some
examples of nonexcusable delays:
• Late performance of subcontractors
• Untimely performance by suppliers
• Faulty workmanship by the contractor or subcontractors
• A project-specific labor strike caused by either the contractor’s unwillingness to meet with labor representatives or by unfair labor practices
Again, the contract is the controlling document that determines if a
delay would be considered nonexcusable. For example, some contracts

consider supplier delays to be excusable if the contractor can prove that
the materials were requisitioned or ordered in a timely manner, but the
material could not be delivered due to circumstances beyond the contractor’s control, such as national or worldwide material shortage. Other contracts may not consider such delays to be excusable. Therefore, both
owners and contractors should recognize the importance of clear and


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unambiguous contract documents when defining excusable and nonexcusable delays.

Compensable versus noncompensable delays
A compensable delay is a delay for which the contractor is entitled to
both a time extension and additional delay-related compensation.
Relating back to excusable and nonexcusable delays, only excusable delays
can be compensable. A noncompensable delay means that the contractor
is not entitled to additional delay-related compensation resulting from the
delay. Some excusable delays may be compensable. All nonexcusable
delays are noncompensable.
Whether or not a delay is compensable depends primarily on the
terms of the contract. In many cases, the contract specifically defines the
kinds of delays that are excusable, noncompensable, for which the contractor does not receive any additional money but may be allowed a time
extension. Contracts distinguish between compensable and noncompensable delays in many ways, some of which are described in the following
paragraphs.

Federal contracts
Federal government contracts normally define strikes, floods, fires, acts of
God, and unusually severe weather as excusable but noncompensable
delays. These are delays that are outside the control of both the contractor

and the owner. Other forms of excusable delays may be compensable,
such as differing site conditions or owner-directed changes.

ACTIVITY DELAY VERSUS PROJECT DELAY
A common mistake as it pertains to measuring project delay is to
calculate project delay by merely comparing an activity’s planned and
actual dates, regardless of whether the activity was on the critical path
when the delay occurred. For example, if the start of the building’s excavation operation was planned to begin on Friday, September 15, but it
actually started on Wednesday, September 20, one might be tempted to
conclude that the contractor is entitled to a time extension of 5
workdays.


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Figure 4.2 Example before late start of Activity A.

Figure 4.3 Example after late start of Activity A.

However, a project can only be delayed when the critical path is
delayed. So, the first thing that an analyst must do when attempting to
measure project delay is to identify the critical path; remember, only
delays to the critical path will cause project delay.
Figs. 4.2 and 4.3 illustrate how activity delay produces project delay
and how project delay should be measured on a calendar day basis. The
schedule example depicted in Fig. 4.2 consists of three activities connected in sequence. The data date of the schedule is May 1, 2017, and
the project’s forecast completion date is May 26, 2017. In Fig. 4.2, the
initial critical activity is Activity A, which is planned to start on May 1,

2017, and the shaded portions of the bar chart indicate nonworking days.
Fig. 4.3 depicts the same schedule, but it demonstrates the consequence of the late start of Activity A, which is the initial activity on the
critical path. The start of this activity is delayed from May 1, 2017, to
May 3, 2017, which is a 2-workday delay and the project schedule’s data
date is May 4, 2017.
If the delay experienced by Activity A was used as the only basis for
identifying and measuring the project delay, then a comparison of the
May 1, 2017, planned start date to the May 3, 2017, actual start of
Activity A would result in project delay of 2 workdays. However, project


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delay is not calculated by simply comparing the planned and actual performance of a critical activity. It is calculated by measuring the effect that
the actual performance of a critical activity has on the scheduled project
completion date. When Figs. 4.2 and 4.3 are compared on this basis, it
should be clear that the 2-day delay (May 1 and 2) to the start of Activity
A resulted in a 5-calendar-day delay to the scheduled completion date of
the project from May 26, 2017, to May 31, 2017.
Said another way, if Activity A had actually started on May 1, 2017,
and if all three activities had progressed as expected, then the project
would have finished on Friday, May 26, 2017. However, Activity A
started 2 workdays late on May 3, 2017, and, as a result, this 2-workday
delay delayed the completion of the project 5 calendar days from Friday,
May 26, 2017, to Wednesday, May 31, 2017. The difference between
the 2-workday late start of Activity A and the 5-calendar-day delay to
the project was due to the fact that the next available workdays after
the planned completion date of Friday, May 26, 2017, were Tuesday,

May 30, 2017, and Wednesday, May 31, 2017. This was because
Saturday, May 27, 2017, through Monday, May 29, 2017, were nonworkdays due to the weekend and the observance of the Memorial Day
holiday.
Therefore, when evaluating the magnitude of a delay, the analysis
should consider not only the delay itself, but resulting delay to the scheduled project completion date.

NO-DAMAGE-FOR-DELAY CLAUSES
Some contracts are more restrictive in defining compensable delays.
It is also not uncommon for a contract to use exculpatory language concerning delays. Exculpatory language is language that exculpates, or
excuses, a party from some liability. One approach that might be used to
limit compensation for delay is a broad no-damage-for-delay clause. The
wording in this clause can take many forms, but in general the clause
states that for any excusable delay the contractor may be granted a time
extension, but no additional compensation will be paid. The time extension is the sole remedy for the contractor for any type of excusable delay.
An example of such a clause is presented in Fig. 4.4.


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Figure 4.4 Example 1 no-damage-for-delay clause.

Figure 4.5 Example 2 no-damage-for-delay clause.

It should be noted that enforcement of these types of clauses has been
questioned in the courts. Some courts have been reluctant to strictly
enforce these clauses and, in cases where such exculpatory language may
be enforced, it is often strictly construed. According to legal views
researched, courts have often ruled narrowly on no-damage-for-delay

clauses, thus limiting enforceability. Contractors, though, should not
assume that these provisions will not be enforced.
There are many variations in contract clauses that address the compensability of delays. However, the broader the clause, the less likely it is to
be enforceable. More specific clauses are more readily upheld by the
courts. Public contracts at the state and municipal level often contain specific no-damage-for-delay clauses. An example of a no-damage-for-delay
clause pertaining to work by utilities is shown in Fig. 4.5.
Similarly, the paragraph in Fig. 4.6 shows a no-cost-for-delay clause
covering work by other contractors.
A no-damage-for-delay clause that specifically covers the review and
return of shop drawings is shown in Fig. 4.7.
All parties to a project should clearly understand the clauses of the
contract concerning delays and time extensions. If a contractor is


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Figure 4.6 Example 3 no-damage-for-delay clause.

Figure 4.7 Example 4 no-damage-for-delay clause.

considering signing a contract with such language, it should consult qualified counsel familiar with construction litigation and the laws of the jurisdiction in which the clause will be enforced or adjudicated.
When a contract identifies specific items in a contract as being noncompensable, it should clearly define each one. For example, if unusually
severe weather is a noncompensable delay, the contract should clearly
state the restriction. The contract may define unusually severe weather as
weather not ordinarily expected for the specific time of year and region.
The definition in the contract may further clarify unusual weather as that
which exceeds the historical weather conditions recorded by the National
Oceanic and Atmospheric Administration at a specific location. The

Corps of Engineers has taken this one step further by specifying in their
contracts the exact number of days of rain greater than 0.01 in that the
contractor can expect during each month of the project.
While the extent of detail provided by the Corps of Engineers may
not be absolutely necessary, the owner should be sure that the contract
does not have ambiguous wording. Some contracts will list “inclement
weather” as an excusable, noncompensable delay, but “inclement” can
have many definitions. It is also possible that inclement weather may
occur but may not delay the project. Therefore, all parties to the contract


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must carefully read and clearly understand the compensable and noncompensable delays recognized by the contract.

CONCURRENT DELAYS
The concept of concurrent delay is a very important aspect of delay
analysis. Concurrency is relevant, not just to the determination of critical
delays, but also to the assignment of responsibility for delay-related costs.
Owners may cite concurrent delays by the contractor as a reason for issuing a time extension without additional compensation. Contractors may
cite concurrent delays by the owner as a reason why liquidated damages
should not be assessed for its delays. Unfortunately, few contract specifications include a definition of “concurrent delay” or define how concurrent
delays affect a contractor’s entitlement to additional compensation for
time extensions or responsibility for liquidated damages. To complicate
matters further, there is a lack of consistent understanding in the industry
concerning the concept of concurrent delay. So as not to diverge at this
point, concurrent delays are discussed in detail in Chapter 7, Delay
Analysis Using Critical Path Method Schedules.