Contractors sometimes schedule their work for completion prior to the contractually stipulated deadline. This is the contractor’s prerogative. The deadline is the last permissible date for completion, not the required exact date. But what if the contractor is delayed by the project owner and is unable to achieve its scheduled completion? Should the contractor be allowed to recover delay damages?
The basic rule is that if the contractor actually scheduled early completion, the schedule was realistic, and the contractor would have met its schedule but for delay caused by the project owner, the contractor may recover delay damages. Precedent is divided as to whether the contractor is required to have notified the owner of its scheduled early completion date.
In a recent case, a contractor which failed to achieve scheduled early completion claimed extended field overhead and unabsorbed home office overhead incurred as a result of the extended performance period. The claim was denied, however, because the contractor’s schedule had not been realistic. Activities had been spaced too close together in an overlapping manner and the schedule assumed overly-optimistic production rates.
How do you feel about claims of this nature? Should contractors be allowed to claim delay damages even when a project is completed within the contractually allotted time? Isn’t such a claim premised on an assumption that any “float” in the schedule belongs to the contractor?
I welcome your comments.
Featured in Next Week’s Construction Claims Advisor:
- Inaccurate Payment Requests Did Not Invalidate Lien
- Excess Excavation Was Fault of Contractor
- Bid Responsive Despite Failure to Acknowledge Nonexistent Alternates
Bruce Jervis, Editor
Construction Claims Advisor