“No-Damage-for-Delay” clauses, if clear and unambiguous, can be an effective contractual assignment of the risk of construction delays. However, so many exceptions have been carved out that the enforceability of these clauses sometimes seems illusory. One widely recognized exception arises when the party seeking to enforce the clause has failed to meet its own contractual obligations.
Under the terms of a trade subcontract, a prime contractor was responsible for scheduling and coordinating the work. The contractor did a miserable job coordinating the trades, which forced the masonry sub to perform in a stop-and-start fashion and eventually accelerate the pace of its work in an effort to stay on schedule. Would the contractor be allowed to enforce a no-damage-for-delay clause against the subcontractor?
The other case in this issue involved a job site partially controlled by a third-party railroad. Could the railroad’s unanticipated use of its property constitute a differing site condition? Or, as a matter of law, did this not qualify as a site condition?
