Eighteen Days Late and One Late Letter
A $3.6M school renovation contract gives 150 calendar days to substantial completion, liquidated damages of $1,200 per day capped at 10% of the contract sum, and a clause requiring written notice of any delay within 7 days of the event. The accepted schedule carried 6 weather days for the entire calendar. Month 2 produced 11 rain days. In month 3 the owner issued a written architectural supplemental instruction relocating the mechanical mezzanine; the scheduler has since shown that added work as 14 days on the critical path, but no change order was ever priced or signed. In month 4 the concrete sub's slab failed the specified floor flatness check and required 4 days of demolition and re-pour. The contractor reached substantial completion on day 168 and filed one 30-day time-extension request on day 165. The owner is assessing $21,600 in liquidated damages.
1. Do a day-by-day entitlement analysis. How many days is the contractor actually entitled to, and how much of the liquidated damages survives?
Read the worked answer
| Event | Days | Excusable? | Compensable? |
|---|---|---|---|
| Rain: 11 actual vs. 6 allowed | 5 | Yes - weather is a classic excusable, non-compensable delay | No |
| Owner's ASI - mezzanine relocation, 14 days on the critical path | 14 | Yes | Yes - owner-directed change |
| Slab failure and re-pour | 4 | No - subcontractor means and methods | No |
| Total excusable | 19 |
Overlap check first: if the 14 days of ASI work ran concurrently with the rain days, the entitlement is not additive - you get one extension for a period in which two excusable causes operated at once. The scheduler must show the CPM update with and without the ASI to prove the 14 days actually moved the completion date, and must show the rain days as non-concurrent if they are to be stacked.
On a clean, non-concurrent analysis: 19 excusable days against 18 days of actual overrun leaves zero liquidated damages, and the ASI carries a compensable cost claim on top (the ASI's direct cost plus time-related field overhead for the 14 days).
Realistic outcome: the owner will not concede the weather days, and the notice problem (below) hands it an argument. Assume the contractor recovers the 14 ASI days and loses the weather argument: 18 – 14 = 4 days × $1,200 = $4,800, with the 10% cap ($360,000) irrelevant. That is the number to plan around.
2. The contractor gave no notice within 7 days of any event and filed a single request on day 165. How much does the notice clause hurt, and on which events?
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The notice clause hurts the weather claim most and the ASI claim least.
- Weather: the contractor never wrote a letter. Six weather days were contractually allowed; the five excess days are the ones at risk, and a 7-day clause with no contemporaneous writing is exactly the situation the clause was drafted for. The best counterarguments are (a) daily reports and owner-attended progress meetings that recorded the rain, and (b) waiver by course of dealing - if the owner accepted monthly schedule updates showing weather days without objection, it has effectively acquiesced. Both are evidence arguments, not entitlements; this is the softest part of the claim.
- ASI: the owner directed the change in writing. An owner cannot direct extra work in writing and then hide behind a notice clause to escape the time and cost that work necessarily caused; a written directive plus a schedule update documenting critical-path impact is strong, and the change-order machinery was as much the owner's obligation as the contractor's. This is the claim to fight for.
- Slab rework: no extension regardless of notice. Contractor risk.
Also note the timing: a 30-day request submitted on day 165 - after substantial completion was already in sight - invites the argument that it is a back-filled claim. For the next job: notice within 7 days, every time, even if the notice says "impact unknown, reserving rights." A one-page letter is cheap; losing five days of extension is not.
3. What should the contractor actually submit, and what documentation has to support it?
Read the worked answer
Submit, separately, not as one 30-day lump:
- Time extension request - 14 days, tied to the ASI, supported by the written directive, the CPM update showing the mezzanine as critical, the resource/cost loading, and the recovery or mitigation steps taken.
- Weather extension - 5 days, supported by daily reports, NOA weather records for the site's station, and the owner-accepted monthly schedule updates.
- Change order for the ASI direct cost plus 14 days of time-related field overhead (supervision, temporary facilities, equipment standby, general conditions), with the markup per the contract's change-order clause.
- Do not claim the 4 rework days. Claiming them weakens the credible parts of the claim.
Documentation package: daily reports signed by the superintendent; the written ASI; schedule updates as submitted monthly; photographs and delivery tickets; the concrete sub's rework record (to prove the rework was theirs, not the contractor's); cost records for the ASI work separated from base-contract costs; and a contemporaneous narrative memo prepared now while memories are fresh, not at mediation.
Reserve position: state in the cover letter that the contractor does not waive any time or cost entitlement, that the owner's assessment of liquidated damages is disputed, and that any deduction from the final payment will be treated as a wrongful withholding under the prompt-payment provisions.