Forty-Five Days of Owner Delay, Thirty Days of Your Own
You are the contractor on a $14,000,000 fixed-price school project. Contract time is 300 calendar days, with liquidated damages of $2,500 per calendar day, a no-damages-for-delay clause, and a clause requiring a written time-extension request within 10 days after the start of any delaying event. Two things happened. First, the owner's structural engineer averaged 18 days to answer 12 RFIs, delaying the steel and deck sequence; you can substantiate 45 calendar days of critical-path impact. Second, your steel fabricator shipped the wrong beam sizes, costing you 30 calendar days on the same critical path, overlapping the RFI period. You never submitted a written time-extension request for the RFI issue until day 280. On day 285 the owner writes that the completion date is unchanged and reminds you of the liquidated damages. Your PM wants to send a 45-day extension request plus an acceleration claim.
1. How many days of time extension are you realistically entitled to, and how does the concurrency affect the analysis?
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Work through the delay types before you write a single day into the request.
- RFI delays - 45 days, owner-caused, critical path. Excusable and, in principle, compensable. The no-damages-for-delay clause will bar the money; the time is a separate question.
- Fabricator error - 30 days, contractor-caused, same critical path, overlapping. Non-excusable. You own it.
- Concurrency does not subtract days from your excusable period, and it does not add either. Under the majority rule, where owner-caused and contractor-caused delay run concurrently, the contractor is entitled to a time extension for the excusable period and is protected from liquidated damages, but recovers no delay damages for the overlapped days. What you cannot do - and what your PM is about to do - is claim 45 + 30 = 75 days. The fabricator days are inside the RFI window.
- Realistic entitlement: up to 45 days of time, zero delay dollars.
The bigger problem is the notice clause. You asked for an extension on day 280 for delays you knew about months earlier. Many courts and boards enforce time-extension notice provisions as conditions precedent. If this one is enforced, your entitlement is zero days, the completion date stands at day 300, and you are exposed to LDs for every day past it. That is the risk to put in front of your PM, not the 45 days.
2. Can the contractor make a constructive acceleration claim? What has to be true?
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Constructive acceleration requires all of the following:
- An excusable delay entitling the contractor to a time extension;
- A timely request for that extension;
- The owner's failure or refusal to grant it;
- An express or implied order to accelerate - a demand to finish on the original date can qualify;
- Actual, identifiable acceleration costs (overtime, second shift, expediting, added supervision).
Test your facts against each:
- (1) Arguable, subject to the notice problem.
- (2) Fails badly. A request on day 280 for events that began months earlier is not timely.
- (3) Has not happened. The owner's day-285 letter is ambiguous - it may be a reminder, not a refusal of anything, because you have not requested anything yet.
- (4) Nothing has been ordered. You cannot claim acceleration costs for a period during which you have not accelerated.
- (5) No costs yet incurred, by definition.
Conclusion: there is no constructive acceleration claim today. Sending one now hands the owner a motion to dismiss. The correct move is to submit the time-extension request immediately, with a time-impact analysis and a factual narrative of when you first knew of each delay, and preserve the acceleration theory for later if the owner refuses in writing and directs you to hold the date. If that happens, accelerate under written protest and track the cost separately from your base job costs.
3. What is your commercial strategy between day 285 and day 300?
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- File the extension request this week, not later. Attach a fragnet or time-impact analysis showing the 45 days of critical-path impact, the RFI log with send and response dates, and a narrative of the first notice you gave (meeting minutes, daily reports, RFI transmittals). Argue that the owner had actual, continuous notice through the RFI log even if the formal request was late, and reserve all rights expressly.
- Do not concede the 30 fabricator days, and do not trumpet them either. A frank internal concurrency analysis protects you against being blindsided; disclosing it to the owner is a negotiating decision, not a documentation duty.
- Push for a global settlement. The realistic trade is a time extension in exchange for waiving the delay-cost claim - you get relief from $2,500/day and the owner gets certainty and no litigation. Value the LDs at stake: 45 days × $2,500 = $112,500 of exposure you are trying to eliminate.
- Protect the record from day 285 forward. Daily reports, meeting minutes, and a contemporaneous log of every owner-caused interference. If this goes to a claim, the 285-to-300 window is where the record will be won or lost.
- Check the LD clause for enforceability. Liquidated damages must be a reasonable forecast of probable loss at contracting. At $2,500/day on a $14M project, the rate is roughly 0.018% per day - generally defensible, so do not build your strategy on an unenforceability argument. Build it on getting the days.