Chapter 17 - § 17.5 • COMPLETION TIME

• Jurisdiction: Colorado

§ 17.5 • COMPLETION TIME

§ 17.5.1-Introduction

There are probably more disputes among construction industry participants involving completion time than any other issue. Delays are often costly to everyone involved. Owners are deprived of the use of their projects. Contractors and subcontractors incur additional overhead for prolonged completion time, coupled with their inability to take on other work that might be profitable. It is, therefore, not unusual for all of the participants to blame others for delays and seek to be compensated for delay damages. Some delay-related risk may be avoided at the contracting stage.

§ 17.5.2-No-Damages-for-Delay Clauses

During the contracting process, everybody wants to get a leg-up by assuring the recovery of damages resulting from delays, limiting those damages, or avoiding delay damage recoverability entirely.

Some-smart aleck attorney or wise counsel (depending upon whose interest was involved) came up with the idea of promoting a contract provision simply eliminating the right to recover damages for delay in construction contracts and subcontracts. Many of those "no-damages-for-delay" provisions (generously) agree that subcontractors would be entitled to time extensions, but no damages.

Example 1: Subcontractor agrees that delay/impact costs for its subcontract work are waived, except for those items which [contractor] can recover from the Owner or other subcontractors/suppliers and about which Subcontractor provided timely written notice allowing [contractor] a minimum of two (2) weeks to address the issue with the responsible party.

Example 2: Should the Subcontractor be delayed by the act or omission of the Contractor or by any other Subcontractor on the project, or by any cause beyond this Subcontractor's control and not due to any fault, act, or omission on its part, then the time for completion of the work shall be extended for a period equivalent to the time lost by reason of the aforesaid causes, as determined by the Contractor. Such extension of time shall be the Subcontractor's sole and exclusive remedy for any delay and the Subcontractor shall have no claim for damages against the Contractor for any delay.

§ 17.5.3-Analysis

Contractors and subcontractors on the receiving end of a no-damages-for-delay clause should probably "just say no."

It does not appear that Colorado has any appellate court decisions ruling on the enforceability of such clauses. Colorado does, however, have a statute, C.R.S. §...