When working on any project, you have a timeline that both you and your customer agree on, but on large commercial projects you need to finish on time, it can be especially urgent in order to avoid litigation.
Comprehensive commercial design/build projects involve considerable manpower and expensive equipment, and the longer the job takes, the higher costs will become so delays can increase the risk of litigation.
However, delays can and will occur so it is important to know how to prepare and justify time extension requests. These are not just for the landscape contractor’s benefit when construction has been delayed, as time extensions also protect the client’s right to any liquidated damages.
If a delay occurs where it is not the contractor’s fault and there is no extension of time, the customer can no longer hold the contractor to the original completion date. The contractor is then granted a “reasonable” time to finish the work.
The two key elements needed to entitle your company to a time extension is proof that the cause of the delay was excusable, under the terms of the contract, and that as a result the date for completion has been delayed.
The first aspect is the delay itself and there are two major categories of delays: inexcusable and excusable. Inexcusable delays are setbacks that are the contractor’s or third party’s fault and can result in the contractor having to pay liquidated damages or actual damages to the client for the late project completion.
Excusable delays are caused by circumstances that are out of the contractor’s control and are not caused by the fault or neglect of the contractor or third parties the contractor is responsible for.
Examples of some are strikes, floods, fires, epidemics and unusually severe weather. In order for an event to be declared unusually severe weather, the contractor must demonstrate that weather experienced compares far differently to the historical weather data taken from the National Oceanic and Atmospheric Administration (NOAA) records for that region.
Severe weather on its own does not automatically constitute a delay or the need for a time extension. The landscape contractor must demonstrate how the weather actually delayed progress on the project. For example, two abnormally rainy days can lead to heavily saturated soils that prevent work for five more days.
The contractor still assumes liabilities for delays arising from labor shortages not related to labor disputes, correcting defective work or replacing defective materials or severe weather that is not unusual in the area.
If a delay has been found to be indeed excusable, the contractor must then demonstrate how it has impacted the completion date. Critical path analysis can help provide a logical explanation for the delay instead of allowing the client to form their own opinion of the effect of a delay without analysis.
Contractors should let the project manager know of any issue that may affect the project schedule, as some contracts state that failure to provide a timely notification dismisses any following claim for an extension of time.
After notifying the project manager, a formal letter should be written to the contract administrator requesting the extension and listing why the days need to be added. Take care to note that some contracts only allow time extension requests within a certain time frame or they will be rejected.
When requesting a time extension, the quality of information provided is essential for assessing applications.
List the cause of the delays and a list of activities in the project schedule that have been affected in response. Sketches, photos and actions the contractor has taken to avoid or minimize other delays are also helpful. The contract administrator should be presented the exact amount of time being requested along with recommendations and alternative solutions.
Landscape contractors should keep in mind that calendar days are not the same as working days and should consider other possible delays when setting their time extension request.
If the time extension is granted, a change order will be issued.