What is an excusable delay in construction?
An excusable delay is a delay to the work caused by something outside the contractor's control and not its fault, which entitles the contractor to more time and protects it from default or liquidated damages. Examples include unusually severe weather, strikes, and fires. A compensable delay differs because it earns money as well as time.
Not every delay is the contractor's problem. An excusable delay is one the contract says the contractor should not be punished for, such as unusually severe weather, a strike, a fire, or an act of the owner. The usual remedy is a time extension. Whether the contractor also gets paid for the delay depends on whether it is also compensable.
Excusable, compensable, and inexcusable
| Type | Cause | Typical remedy |
|---|---|---|
| Excusable, non-compensable | Neither party's fault, such as unusually severe weather or a strike | Time only |
| Excusable, compensable | Owner-caused, such as late design or owner changes | Time and money |
| Inexcusable | Contractor or its subs and suppliers within its control | Neither; the contractor may owe liquidated damages |
What the federal rules say
The FAR is a useful model. Under FAR 52.249-10, the default clause for fixed-price construction, the contractor is protected if the delay arises from unforeseeable causes beyond its control and without its fault or negligence. Listed examples include acts of God or the public enemy, acts of the government, acts of another government contractor, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, and delays of subcontractors or suppliers from those same kinds of causes. The contractor must notify the contracting officer in writing of the causes of delay within 10 days from the beginning of any delay, unless the contracting officer extends that time.
Private contracts use similar ideas, often in a force majeure clause, with their own notice periods and lists.
A worked example
Say a GC on a $3.2 million church addition loses 6 work days in February to rain. The contract allows extensions only for weather beyond normal for the location, and the spec lists expected rain days per month. February's normal is 5 lost days, and the superintendent's daily logs show 11. The GC sends written notice within the contract period, attaches the logs and local weather data, and shows the roofing activity on the critical path was stopped. The owner grants 6 days. No money changes hands, because weather is excusable but not compensable under this contract, but the GC avoids 6 days of liquidated damages.
Concurrent delay complicates things. If the owner was late approving a submittal during the same week the contractor's crew was short, both caused the delay. Many contracts and courts handle that by granting time but no money, but the result depends on the contract language and the jurisdiction. A clean, current schedule is the only way to show which delay actually drove the end date.
Common mistakes
- Missing the notice deadline. Even a strong excusable delay can be waived by late notice.
- Claiming weather days that did not hit the critical path. If the delayed work had float, the job end date did not move.
- Assuming 'normal weather' means any rain. Most contracts only excuse weather that is unusually severe for the place and season.
- Blaming a sub. Under the FAR clauses, a sub's delay excuses the prime only when the cause is beyond both their control and without fault.
Related terms
See weather delay, delay claim, no damages for delay clause, float, and early warning notice.
Frequently asked questions
What is the difference between excusable and compensable delay?
An excusable delay earns more time. A compensable delay earns time and money. Owner-caused delays are often both; weather and strikes are usually excusable only.
Is bad weather an excusable delay?
Usually only when it is unusually severe for the location and time of year. FAR 52.249-10 lists unusually severe weather as an example.
How much notice do I have to give?
It depends on the contract. Under FAR 52.249-10, written notice is due within 10 days from the beginning of the delay, unless the contracting officer extends the time.
Can a supplier delay be excusable?
Sometimes. Under the FAR clauses, it has to arise from causes beyond the control of both the contractor and the supplier and without their fault.
