For contractors, there’s nothing more frustrating than falling behind on your project timeline as a result of forces outside of your control. Whether it’s inclement weather, a labor dispute, or a material shortage, you don’t want to be penalized for missing your design checkpoints. The best way to protect yourself from paying out of pocket when your project is delayed is by contacting a Miami construction attorney from Cotney Construction Law to incorporate the Delays Provision into your next contract.
Our Miami construction attorneys have been fighting side-by-side with construction industry professionals for years to ensure that contractors are treated fairly by owners and not exploited through contractual loopholes. In part one of this two-part series, we introduced the Delays Provision. Now, we will explore common issues associated with the Delays Provision and how to prevent them from arising.
What Are the Common Issues with the Delays Provision?
Typically, the Delays Provision is drafted to grant contractors the unilateral freedom to extend project timelines when “force majeure” events result in a delay. This shouldn’t concern owners who are collaborating with contractors they have worked with in the past, but it can be a point of contention when working together for the first time. One drawback of this approach is that owners can be targeted for compensation to appease compensable and non-compensable delays. Another drawback, is that the time spent recovering from a delay and collecting compensation can extend the project timeline and increase costs.
While negotiating what constitutes a compensable delay in the talks leading up to the contract signing can help prevent the majority of disputes, it can be difficult to reach a true middle ground when deciding what justifies a delay. However, contractors generally have the upper hand when fighting for compensation as the result of a delay, and the legal expenses associated with taking you to court will often dissuade the owner from considering litigation.
The best way to prevent a dispute between yourself (the contractor) and the owner is to enter a deliberate negotiation wherein the Delays Provision is drafted to the satisfaction of both parties. In the presence of an independent counsel, both you and the owner can discuss what events are compensable and non-compensable before drafting a list of events that warrant a delay. By including this list in the Delays Provision, you can guarantee that both parties are on the same page regarding delays and damages that are compensable. Furthermore, there will be no surprises when an unexpected event derails a project.
On the other hand, if you utilize a “no-damage-for-delay” clause, you must first verify that the clause is written in accordance with state-specific rules and regulations. Otherwise, you may find that your provision is void or unenforceable.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.