VOLUME 2   ISSUE 49   DECEMBER 06, 2013


By Bruce Jervis


No-damage-for-delay clauses have long been fixtures in construction contracts. The contractor acknowledges that its sole remedy for delay of any cause shall be an extension of the performance period. The contractor relinquishes the right to recover any costs or damages incurred as a result of delay. Project owners have imposed these terms on contractors that, in turn, have imposed them on subcontractors.


The harsh, one-sided nature of these clauses has led to a pushback. Legislatures in some states have enacted statutes rendering no-damage-for-delay clauses unenforceable. Judicial decisions have had the same effect. In some -- primarily western -- states, mechanic’s lien rights are protected by the state constitution. Delay damage disclaimers have been ruled an unconstitutional impairment of lien rights. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • No-Damage-for-Delay Clause Void under Miller Act
  • Lien Filing Period Not Extended by Subsequent Change Order Work
  • Money Recovery Not Required for 'Prevailing Party'


By Steve Rizer


When, if ever, does a contractor have a right to refuse to proceed with an accelerated-recovery directive? Does there ever reach a point of sufficient magnitude or contentiousness whereby a contractor can say, “I have to simply invoke a right to refuse to follow your directive?” Chris Burke, a partner in Watt, Tieder, Hoffar & Fitzgerald LLP, addressed this inquiry during the question-and-answer period of “Recovery Schedules -- The Construction Acceleration Hot Potato: Practical and Legal Considerations,” a 90-minute webinar that WPL Publishing held late last month. To read his response to the inquiry, click here.


By Steve Rizer


What can be done to remedy the apparently endemic problem of underperforming green buildings? During a recent Greenbuild conference session entitled “Green Building Post-Mortem: What Went Wrong?” panelist George Trapp, a commissioning agent with In-Posse LLC, suggested that a significant part of the problem lies in the level of involvement and communication among certain key players who have a hand in maximizing a building’s green potential.


Trapp reported that at the commissioning “kickoff” meetings he attends, “a lot of times I look at who’s around the table, and it’s always the superintendents, the owners; it’s never the foreman or field crew [attending] those meetings, so we end up preaching the design intent to the wrong audience. We need to get the right people into these commissioning kickoff meetings so that they understand the nuances of working on a high-performance building as opposed to a typically constructed building. I think it’s important we do that now.” ... Read more.





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