Construction delays chapter sixteen determining responsibility for delay

CHAPTER SIXTEEN

Determining Responsibility
for Delay
In addition to determining the activities that were delayed, the magnitude
of the delays, and the general nature of the delays (extended duration, late
start, etc.), the analyst must also determine the party responsible for the
delay. Often, responsibility will be determined after the analyst has identified and quantified the delay. This is because specific delays are often
identified only after the project schedules are analyzed. But even if the
delay has not yet been quantified, the basic concepts associated with
determining responsibility are the same.
Note, also, that “responsibility” may have to be determined on several
levels. First, there is the basic question as to which party is responsible for
the delay, or if responsibility is shared. Once responsibility is determined,
the contract may then provide guidance as to how the consequences of
the delay will be addressed. For example, is the delay excusable or compensable? The types of delay—excusable or nonexcusable, compensable
or noncompensable—were discussed in detail earlier in this book.

CONTRACT REQUIREMENTS
When determining who was responsible for a delay, it is essential to
first refer to the contract. The contract will be determinative in identifying which party was responsible for the performance of the work that led
to the delay. In some cases, such as unusually severe weather, neither
party will be “responsible.”
The General Conditions or General Provisions of the contract will
generally be the most informative and helpful regarding the contractor’s
entitlement to a time extension. Keep in mind that contracts include
references to contract provisions that are not physically included in the
contract, but are part of the contract by reference. With respect to delays,
it is important to focus on the changes clause or clauses (differing site
Construction Delays.
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condition and suspension clauses, e.g., are “changes clauses”) and on the
scheduling and time extension provisions of the contract. These are most
commonly the clauses that address delays and time extensions. Also, pay
attention to exculpatory clauses like no-damage-for-delay clauses that
may seem unfair but may be enforceable depending upon the applicable
jurisdiction and case law.
Delays that are the contractor’s responsibility will generally not entitle
the contractor to any time or monetary relief and will typically expose the
contractor to liquidated or actual damages for completing the project late.
Delays that are the responsibility of the owner are generally caused by
some form of change, either directed or constructive. These may include
a change in the design, an error or omission in the contract documents, a
differing site condition, failure to provide timely direction or approvals,
failure to timely answer questions needed to progress the work, inspecting
the work to a higher standard than specified, or a stop work order.
Some contracts include time extension provisions that provide a
detailed list of the types of delays for which a contractor would be entitled to a time extension and reimbursement of delay costs. Some contracts, however, do not even have a time extension provision. When the
contract is silent in this regard, it is generally prudent to assume that,
based on industry norms, the contractor will be entitled to a time extension for project delays that are not the contractor’s fault or responsibility
and that could not reasonably have been anticipated or mitigated by the

contractor. Similarly, if the contract is silent with regard to compensation,
absent contract language, or case law to the contrary, it is generally prudent to assume that delays are compensable when they are excusable and
they are the owner’s fault or responsibility.
For example, critical project delays caused by industry-wide strikes are
generally considered to be excusable, but not compensable. That is
because such strikes are not seen as being the fault or responsibility of the
contractor and could not have been foreseen or easily mitigated. Strikes
are usually not compensable, because they are also not the owner’s fault
or responsibility.
In contrast, a critical project delay caused by the owner’s unwarranted
suspension of the contractor’s work would typically be seen as being compensable. This is because the delay was the owner’s fault and responsibility
and not the contractor’s.
Most construction contracts have some kind of notice provision
related to project delay. Though there is a great variation in how these


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provisions are written, they generally require the contractor to provide
timely written notice to the owner that the contractor is experiencing a
delay for which the contractor believes it is entitled to a time extension.
There are at least three reasons that owners require notice. The first is to
give the owner an opportunity to investigate the problem. The second is
to give the owner and the contractor time to work together to develop a
strategy to mitigate the delay, and, third, to give the owner an opportunity to document the delay contemporaneously. Even if the contract does
not have a notice provision, the contractor would be well advised to prepare contemporaneous written documentation regarding the delay and to
timely submit this information to the owner.
The contract may specify a set number of days within which time

extension requests must be submitted to the owner. The contract may
further state that if the required written documentation is not submitted
within the time specified, then the contractor forfeits the right to recover
any additional time or money. In addition to specifying time limits, the
contract may also specify exactly the information that the contractor must
submit when requesting a time extension. Such information would
include a clear statement of how much time is being sought and an explanation as to why the delay was the owner’s responsibility; references to
the specific contract clauses that apply; a clear definition of the specific
effects associated with delay (i.e., extra work, overtime, delay, etc.); and a
detailed breakdown of the added costs associated with the delay, if any.

EVALUATING RESPONSIBILITY
In addition to what is referenced in the clauses of the contract, the
process of assigning responsibility for a delay requires a thorough review
of the project documentation to find out what factors influenced the performance of the delayed work. The facts required to assign responsibility
will often come from bid package and prebid meetings and inspections;
contract plans and specifications; preliminary schedules, baseline and
schedule updates, and recovery schedules; change orders, modifications,
or supplemental agreements; daily reports or diaries; general correspondence and emails; requests for information (RFIs); submittals; meeting
minutes; photos and videos; and cost reporting data. For example,
the project daily reports may show that the contractor experienced


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an equipment breakdown on two separate occasions, which caused the
delays to a particular activity. Similarly, a comparison of the schedules and
the submittal log may show that the late start of an activity was caused by

the engineer’s slow return of shop drawings.
For a specific delay, there may be no documentation that reasonably
explains why an activity had an extended duration. Without documentation, it may be reasonable to conclude that the extended duration was the
contractor’s fault. For example, either the scheduled duration was too
optimistic or inadequate resources were applied to the task to accomplish
the work in the time scheduled. Unfortunately, it is common to find
insufficient documentation to answer every question related to the cause
of a delay.
It is also possible that another work activity was responsible for the
activity delay being investigated. For example, an excavation activity may
not have started because the contractor planned to use the area for crane
access to erect steel and a steel design delay delayed the fabrication of that
steel. In this example, the steel activity would likely not have been linked
to the unrelated excavation. The project documents may not readily
reveal the reason for the excavation delay. However, a more thorough
analysis would reveal that the steel delay was the cause of the late start of
excavation.
To arrive at the correct answer, it is necessary to collect all of the
available data related to the work activity that was the source of the delay.
Once the pertinent project documents have been identified, they should
be organized chronologically so that they can be evaluated in the time
period and sequence in which they occurred. It is sometime necessary
to supplement this information with fact witness interviews as some
pertinent information may not have been documented in the project
documents.

WEATHER DELAYS
It is common for time to be “of the essence” in a construction contract. It is also common for “contract time” or the contract completion
date to be terms defined by the contract. In addition, given the contract’s
role in defining the sharing of risk, especially the considerable risk associated with weather, it is common for the contract to specifically address

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how weather-related time extensions will be determined and
administered.
It is important to know how your contract addresses time extensions
for weather. Common contract language addressing time extensions for
weather can vary from allowing recovery of 1 work day for every work
day lost to allowing no time at all. Typically, weather-related time extension provisions only provide for time extensions in the event of unusually
severe weather. When that is the case, the contractor is required to consider and account for anticipated weather in its bid and in its baseline
schedule and schedule updates.
In requesting a time extension for weather delays, the ability to identify the number of days that the actual precipitation exceeded the
expected frequency or levels or the number of days that the temperature
fell well below that which should have been anticipated is only one part
of the equation. The contractor must also demonstrate that the adverse
weather experienced at the project site limited its ability to perform critical path work on those weather-affected days and, thus, delayed the project. To do so, the contractor will need to rely on the project schedule—
in the best case, a Critical Path Method—to determine if the weatheraffected work was, in fact, on the critical path and that the adverse
weather resulted in a delay to the project.
To evaluate a weather-related time extension, as with any time extension request, we need to review the contract. The most common
approach to addressing weather-related delays is for the contract to allow
excusable, noncompensable time extensions for weather-related delays.
Normally, the contract wording will refer to “unusually severe weather.”
A well-written contract should further define what “unusually severe
weather” means. It may clarify this as weather beyond that which is ordinarily anticipated in that location based on the National Oceanic and
Atmospheric Administration historical records. If this type of wording
exists, all parties to the contract should refer to this standard in the resolution of weather-related time extension requests. Some public agencies go
as far as checking the weather experienced at the end of each month, and

if a number of days lost to weather exceeds the norm (as defined by the
contract), the agency will unilaterally grant weather-related time extensions each month. The more normal practice is for the contractor to
request weather-related time extensions.
Though the project may experience weather of a nature that would
qualify for a time extension, the mechanism for providing a time


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extension must be spelled out in the contract and must be followed. For
example, as noted previously, normal practice requires the contractor to
request a time extension for weather-related delays. If the contractor fails
to make this request, it is possible that no time will be granted.
Therefore, all parties need to understand the process for weather-related
time extensions and must follow it as prescribed.
Merely because a project experiences inclement weather that would
qualify for a time extension does not necessarily mean that one is due or
should be granted. For example, if the project is a midrise building and
the building is completely enclosed and “water-tight,” the occurrence of
a significant rainfall may have no effect on the contractor’s ability to perform critical finish work inside the structure. Consequently, no time
extension may be due. Conversely, if the project is a heavy civil job
involving earthwork, and significant rainfall occurs, it is possible that
3 days of severe rain may actually delay the project for more than just
3 days. Additional time may be required to clean up the site and dry the
soil so that work may continue in a productive fashion. Therefore, it is
necessary to verify that the specific work that is adversely affected by the
weather is on the critical path of the project and will delay the project
completion date. If a project experiences unusually severe weather that

would qualify for a time extension, but the work affected had ample
float with respect to the critical path, it is likely that a time extension is
not due.
To properly request or evaluate a time extension request for weatherrelated delays, the analysis must assess the basic requirements of the contract, the severity of the weather occurrence with respect to the contract
requirements, the specific activities that are affected, and the effect of the
affected activities on the project’s critical path.