Kajko, Weisman & Colasanti, LLP

Are non-excusable delays causing issues with your construction?

Having a construction project underway is a huge endeavor. Whether you are a Massachusetts homeowner looking to make an addition to your residence or a business owner hoping to have a new office building or plant constructed, you certainly want your project to go smoothly. Unfortunately, issues with construction can occur and often do.

One of the biggest issues with these projects is delays. Typically, those funding the project will end up spending more money the longer the project takes to complete and will likely face other hindrances. Certainly, some delays cannot be avoided, but in other cases, contractors may just not work on a timely schedule.

Excusable vs. Non-excusable delays

When delays in construction occur, they are commonly categorized as either excusable or non-excusable. As the name suggests, certain delays are excusable or forgivable because the contractor could not have reasonably predicted that they would occur, or they were otherwise outside the contractor's control. Some excusable delays that could affect your project include the following:

  • Natural disasters
  • Lack of action by oversight bodies
  • Labor strikes
  • Mistakes in the construction plans or design
  • Changes that you may have requested
  • Site conditions being different than anticipated
  • Intervention by outside agencies

When excusable delays occur, the contractor is typically not held at fault, but hopefully, when creating your contract for the project, you included details regarding what could constitute an excusable delay. On the other hand, you may experience non-excusable delays, which create a bigger issue.

Contractor's responsibility

Non-excusable delays occur when the project falls behind schedule due to issues that the contractor could have foreseen or controlled. Some of the delays you could come across include:

  • Overall delayed performance by the contractor
  • Substandard workmanship from the contractor or any subcontractor
  • Unnecessarily delayed work by subcontractors
  • Labor strikes caused by the contractor's unfairness or unwillingness to negotiate
  • Delayed submission of project data, mock-ups, samples and other submittals

When non-excusable delays occur, the possibility exists that your construction contractor could be in breach of your contractual agreement. If you suffer damages due to these delays, you may want to explore your options for effectively addressing the situation. While speaking with the contractor directly in efforts to work through the issues is wise, you may need to consider taking legal action if the discussion does not result in a resolution to the matters at hand.

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