Owner/Constructor Agreements and Justifiable Construction Delays

We recently wrote about COVID-19 related delays, and providing notice of such delays, here. When reviewing the delay clauses in your contracts, you need to pay attention for the delaying events that are excusable, as well as those that are compensable. The Executive Director and Senior Counsel for ConsensusDocs (Brian Perlberg, Esq.) recently pointed out that Section 6.3.1(j) of the “ConsensusDocs 200 Owner/Constructor Agreement with General Conditions” specifically allows for delays that are “reasonably due to epidemics.” See: https://www.consensusdocs.org/consensusdocs-addresses-coronavirus-delay-risk-explicitly-other-standard-documents-do-not/?utm_source=informz&utm_medium=email&utm_campaign=informz_email&_zs=ICd0d1&_zl=n51d6

Mr. Perlberg also pointed out that although the AIA documents, and other standard construction contract forms, do not expressly mention epidemics or pandemics, the AIA A201 General Conditions has a catch all clause that allows for extension of time for “other causes that the Contractor asserts, and the Architect determines justify delay.”

Each of the standard construction contract forms, as well as forms prepared and provided by owners, prime contractors, and subcontractors, contains different language to address excusable or compensable project delays. We are counseling our clients concerning the project and contract specific delay issues arising out of the COVID-19 pandemic. Please let us know if we can help you with COVID-19 related project delays.

Stay safe and healthy out there.