CATEGORIES OF RECOVERY FOR DAMAGES
There are three categories of possible recovery for schedule delay damages: inexcusable delays, excusable and non-compensable delays, and excusable and com¬pensable delays.
Inexcusable Delays
Inexcusable delays are within the control of the contractor, its subcontractors, or suppliers, at any tier. Examples include delay caused by late mobilization, late equipment deliveries, or an inadequate project work force. Inexcusable delays are not only not compensable, but they can expose a contractor to delay claims of its subcontractors and to liquidated damages by the owner (or actual damages if there is no liquidated damages clause) [6].
Excusable Delays
Excusable delays are not caused by the contractor’s actions or inactions. These are delays over which the contractor had no control. Excusable delays typically entitle the contractor to contractual time extensions if a project’s completion date were affected.
Excusable delays may affect noncritical paths on the project as well. When an excusable delay results in a time extension to contractual completion dates, the point in time from which the owner begins assessing liquidated damages is modified or extended. If a delay is found to be excusable, it must be determined if it is noncompensable or compensable.
Noncompensable Delays
Noncompensable delays are excusable delays caused by neither of the parties (or both in the case of concurrent delay). Since both the owner and the contractor have been damaged by the delay and neither (or both) has caused it, only time extensions are
warranted. This generally precludes either party from recovering delay damages [5].
Noncompensable delays are typically outside the control of the parties. Some examples include delays caused by labor strikes, acts of God, and unanticipated abnormal weather. Generally, all parties bear their own costs associated with excusable noncompensable delays. Usually, the contractor is entitled to a time extension that eliminates its exposure to liquidated damages being assessed by the owner [6],
Compensable Delays
Compensable delays are excusable delays that are within the control of the owner and its agents or employees, including its construction manager, architect, engineer, or another prime contractor. These delays can arise from acts of the owner in its contractual capacity, from acts of another contractor in the performance of a contract with the owner, or from other events for which the owner has accepted responsibility under the contract. Examples of compensable delays include change orders, differing site conditions, suspension of work for owner convenience, and late review of submittals. A compensable delay may warrant a time extension and expose the owner to delay damages being claimed by the contractor for extended field office overhead and unabsorbed home office overhead [4],
Recovery of damages for concurrent delay is highly dependent upon the situation. The analyst must review the facts of each case carefully. The general rule is that concurrent delays are handled as noncompensable delays, where the certain benefit of excusability wipes out any potential benefit of compensability. The net result is an excusable delay with no liquidated damages or delay damages to the contractor. However, there are exceptions to this “no harm, no foul” rule.
• An inexcusable delay concurrent with an excusable delay generally yields a net excusable delay.
• An excusable delay concurrent with a suspension of work yields a net excusable delay. The US federal suspen-sion clause clearly states that no adjustment shall be made if “the performance would have been so suspended, delayed, or interrupted by any other cause . . . [8].”
• An excusable delay concurrent with delays due to scope changes or differing site conditions may yield a com-pensable
• condition, provided that the contractor seeks recovery under these provisions only, as opposed to the sus-pension provision. Essentially, this is because the relevant federal clauses do not void recovery if other delaying factors materialize [8]. This means that the contractor is simply allowed to not prosecute the excusable issue and merely asserts that the issue of differing site conditions did increase the performance time.
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