Delay Damages

Clauses that ask the contractor to bear responsibility for delay damages not anticipated nor under the control of the contractor are equally unfair and potentially detrimental to the project. As stated in the CII study, even "An unenforceable clause not investigated before bidding will negatively influence the working relationship if enforceability comes into question during the project." As relates to delay damages, clauses should not only grant an extension of time but should allow for reasonable compensation where caused by unforeseeable situations or by the negligent acts of the owner or his agents. (Note: Given public work and the multiple contracts, in the eyes of one prime, another prime is but an agent to the owner.)

As a legal matter, the case of Civetta v. the City of New York states that broadly worded exculpatory clauses only cover those delays that could have been reasonably foreseen and those that were not caused by the negligence of the owner.

Specifically, it listed four types of delays for which damages would be due and owing no matter the clause. They are "(1) delays caused by the contractee’s bad faith or its willful, malicious, or grossly negligent conduct, (2) uncontemplated delays, (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee and (4) delay resulting from the contractee’s breach of a fundamental obligation of the contract."