Outlining excusable vs. inexcusable delays in construction jobs

| Jun 5, 2020

As a general contractor, you know that few, if any, construction jobs end up completed without at least one delay, especially on major projects. Something always comes up. The trick is to minimize those delays if possible.

Another important aspect of dealing with delays is identifying which are excusable and which are not. This could affect your bottom line and any penalties the contract may include for going over the agreed-upon completion date.

Let’s start with excusable delays

Below are some of the more common delays considered excusable:

  • Errors in the specifications of the project
  • Delays caused by the owner’s change orders, decisions or approvals
  • Delays due to issues with third parties who are not part of the actual project
  • Poor weather conditions that necessitate a work stoppage
  • Issues with government approvals and permits
  • Natural disasters that prevent work from continuing
  • Unforeseen issues with the property itself

The key to excusable delays is that you cannot control them. Even if you do everything right as the general contractor, these delays could push back the completion of the project. You should not incur penalties for these types of delays. However, the caveat is that you may receive the extra time you need, but you most likely will not receive any additional monies.

Now, let’s look at inexcusable delays

Below are some specific and common events that would ordinarily constitute an inexcusable delay:

  • Quality failures and issues
  • Delays in the start of the project
  • Suppliers and subcontractors who fail to meet their deadlines
  • Delays in obtaining the materials, equipment and tools necessary to complete the job
  • Delays caused by general late execution and/or performance
  • Failure to appropriately plan and schedule all aspects of the project

As you can see, these delays generally fall at your feet as the general contractor. They have to do with your ability to control and plan the project. If the property owner accuses you of an inexcusable delay, you could end up owing damages to him or her.

Protecting yourself in the construction contract

Knowing that excusable delays will happen isn’t enough. You will most likely need to take steps to protect yourself from losing money on a project because you have to pay the property owner damages for a delay. If the delay is out of your hands, you should not have to do that. The one place where you can protect your rights is in the construction contract. The more specificity you provide about what delays are excusable and which are not, the better off you may be when one arises.

It may be a challenge to think of all the ways your project could be under a delay. You may also find it difficult to negotiate protections for you and your company on your own. For this reason, it would be beneficial to work with a Texas attorney with knowledge and experience in construction law.