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How can subcontractors protect themselves from delay litigation?

Everyone involved in a construction project in North Carolina must work on a tightly coordinated timetable. Delays happen, though, and as a subcontractor, you could be the one paying the price. According to Construction Executive, you do have ways to shield yourself from any potential consequences of schedule changes and delays.

Your contract should include a no-damage-for-delay clause. These terms are standard, and typically address your recovery options for any delays that the owner or the prime contractor cause. The terms may stipulate that you may seek an extension on deadlines, but the language could also state that you would not be paid for damages caused by delays.

You may still be able to recover losses if contractors or others in the upper tier of the contracts obstructed your work. That interference is a breach of the duty of good faith and fair dealing that each party in the contract must fulfill.

The no-damage-for-delay terms are designed to protect you from being held liable for delays further along in the project if you have followed the proper extension request procedures. The contract should include the process for notifying contractors and customers of delays, and this includes a time limit you must meet.

When you file a claim for an extension, you should provide certain evidence of the causes for the delay, such as the following:

  • Records of weather conditions
  • Field checks of the equipment and materials delivered
  • Safety meeting attendance, safety violations and actions taken to correct them
  • Job meeting minutes and records of all discussions and disagreements
  • Progress reports and updates
  • Instructions provided

You should also include change orders, information requests and correspondence. Taking photographs of the project at each stage may also provide important documentation if you need to request an extension.

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