Active interference, as opposed to mere hindrance, is a well-recognized exception to the enforceability of no-damages-for-delay clauses. However, it is a distinction that defies a bright line demarcation. A federal appeals court recently grappled with this distinction and came up with an unusual result.
A prime contractor’s failure to provide compacted earth temporary work stations in accordance with the terms of a subcontract constituted active interference with the subcontractor’s work. The muddy conditions prevented the subcontractor’s performance and necessitated the purchase of mats. The high labor costs incurred in moving the mats from work station to station, however, resulted from a mere hindrance.
The second case in this issue involves liquidated damages for late completion. Although the contractor was not responsible for the majority of the late completion time, the project owner did not lose the right to assess liquidated damages for the remainder of the late completion period. Responsibility for the delay could be apportioned.
The third case addresses a state transportation authority’s change in standard specifications affecting bid bonds and bid responsiveness. The new spec could not be applied to bids submitted prior to the effective date of the revision.
