Construction Insight: Understanding Material Project Delays

February 17, 2022 – Over the last two years, the spread of COVID-19 has caused unprecedented delays and uncertainty in the construction industry. While project delays have always been common, the combined impact of pandemic-related work closures, global supply chain issues, and other disruptions have wreaked havoc on project milestones and completion deadlines.

As a result, many clients ask who is liable for such delays and what can be done to lessen their consequences. While all delays have costs, a delay must be material and actionable to pursue remedies. Proving a delay is material and actionable often requires favorable contract terms, critical path impact, and precise documentation. Keep in mind:

The fine print – Most jurisdictions interpret actionable delays from the contract documents. Some delay remedies may be expressly allowed or barred by the contract’s terms. Applicable law may affect the outcome.
Critical path impact – Whether the delay affected the overall completion of the project and was not caused by the claimant is key. A compensable delay is usually caused by someone else on the project so, for example, a party cannot cause its own critical path delay and prove it is entitled to damages.
Timely documentation – Comprehensive and timely documentation of delay causes and consequences puts project players on notice and helps demonstrate the delay is material and actionable.

Project delays will only increase as the world continues to navigate the often unanticipated impacts of the COVID-19 pandemic. Before pursuing any delay remedies, it is important to consider what makes a project delay material and actionable, and to consult experienced construction counsel who can help you address these challenges.

Ulmer’s Construction Practice Group is made up of experienced attorneys who have been operating in the construction industry for decades. Our time-tested team has handled almost every kind of legal issue that arises in the construction industry and can help you anticipate and manage risk in construction projects. Please reach out to our attorneys if you have any questions.

The information provided in this insight speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. Please continue to follow these updates at ulmer.com. This insight was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this insight, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Jason P. Conte at jconte@ulmer.com