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delay damages: don't delay!

Authored by attorney Kevin A. Rust

Delays are common on construction projects, and so are delay damages provisions in construction contracts. Depending upon your involvement in the project, and the size or your operation, you may not have much input into what that clause says. That doesn’t mean you shouldn’t read it and understand it. 

Many contracts require express written notice of delays on a project in order for the delayed contractor to recover damages. Failure to give that express written notice to party with which you contracted very well could be fatal to your claim – this is true even if you told everyone associated with project that you were being delayed and it was costing your company substantial money. When there is a written contract between the parties requiring written notice, oral notice often isn’t enough. 

Along that same line, see what recovery is available for delay damages. Often times, there are provision that limit the amount of delay damages available. But if you have cleared all of those hurdles, it is still a daunting task to recover – typically, courts require an expert witness to quantify how the delay damaged your company. This is not an inexpensive proposition. 

In short, you must always act to protect your best interest. No matter how close a relationship you may have with a general contractor, you must always follow-up that conversation with a writing. The general contractor may appreciate the professionalism you are showing by doing so, and it will help everyone stay on task (and hopefully out of court).  

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