A notice of delay is required in order to make a claim to extend the completion date or

recover costs.

Let’s take a brief look at the types of delays on a construction project, review some delay

Types of delays

Construction delays are categorized by three characteristics: was it critical, could it have
been avoided, and should the contractor be paid for it.

Critical delays affect the project completion date or some other important milestone, as
they affect the critical path. They can’t be made up, so they lead to an extension of the
project schedule. Noncritical delays affect the completion of specific activities, but don’t
delay the overall completion of the project.

Excusable delays are out of the contractor’s control, like the weather. Most of the time
these are listed in the contract as reasons for the project scheduled to be
extended. Inexcusable delays are caused by the contractor’s actions, and don’t usually
lead to a claim for added costs or a schedule extension.

Finally, if the party affected should be given an extension or compensation for the delay,
it’s called a compensable delay. All excusable delays are compensable since they are out
of the contractor’s control. Inexcusable delays are generally non-compensable.
Delay notice contract clauses

In order to know whether the contractor needs to send a notice, and when the deadline for
sending a notice is, check the contract. Most contracts have clauses dealing with delays or
notices of claims that spell out the requirements for submitting them. Because it can be
hard to know how much of an effect a delay may have on the project, it’s a good practice
to send a delay notice any time one occurs.

For example, let’s look at the Notice of Claims clause in the AIA A201, General Conditions:

15.1.3.1 Claims by either the Owner or Contractor, where the condition giving rise to the
Claim is first discovered prior to expiration of the period for correction of the Work set forth
in section 12.2.2, shall be initiated by notice to the other party and to the Initial Decision
Maker with a copy sent to the Architect, if the Architect is not serving as the Initial Decision
Maker. Claims by either party under this section 15.1.3.1 shall be initiated within 21 days
after occurrence of the event giving rise to such Claim or within 21 days after the claimant
first recognizes the condition giving rise to the Claim, whichever is later.

Later clauses state that in order to make a claim for additional costs or additional time, the
contractor must provide the notice according to section 15.1.3.1 above.

Here’s a similar clause with a much shorter deadline:

Immediately, and in no event no later than ten (10) days after first believes an event may
give rise to or result in a Change due to any delay under this Agreement, the Private Entity
shall notify the Owner’s Representative in writing of them. The notification must identify
the difficulties, the reasons for them, and the estimated period of delay anticipated. Failure
to give such notice in strict compliance with this Section 10.3 will waive any right by Private
Entity to make a claim based upon such delay. Such notice shall be a condition precedent
to Private Entity’s right to pursue any claim for an adjustment to payment or schedule
based upon such delay.
It’s important to clarify that a notice of delay is not a claim, however, it provides initial
notification of grounds for a potential claim. Some contracts stipulate that the
contractor cannot be compensated for delays unless a notice of delay was sent, so it
pays to get in the habit of sending one any time there’s a delay.

Unless the contract states differently, a notice of delay can be sent via email or written
correspondence, and should be sent to the party you are in contract with.

There are three things that should be included in the notice of delay:

1. Details of the delay

Include a short narrative describing what happened and how it caused a delay to the
project, as well as an estimate of the amount of time the project will be delayed, if
known.

2. Potential costs or results of the delay

If there’s a chance that the delay will add additional costs or require a schedule
extension, provide as much information as possible about the effects. Costs should
include labor, material, equipment, and overhead. If a schedule extension will be
needed, give an approximate timeline.
3. Proof or evidence to substantiate the claim
You need to provide backup documentation to substantiate the cause and potential
effects of the delay. This may include photos of damage, weather reports,
correspondence with vendors or contractors, copies of invoices, or other documents.
Send notices anytime there’s a delay.
Since notices of delay in construction are often required by contract, it’s important
that contractors review these sections and understand the deadlines and
requirements for sending such notices. Even if you don’t have all the information
regarding the delay and its possible effects, it pays to be proactive and notify the
project team.

If you have questions regarding a contract, a particular clause, or are in a situation

caused by a delay, it pays to consult a construction attorney. They can provide you
with the guidance you need and let you know your alternatives.