Excusable Delay
A delay the contractor isn't responsible for, which earns more time.
Quick Answer
An excusable delay is a delay caused by events beyond the contractor's control and without its fault, such as owner changes, differing site conditions, or force majeure events. It entitles the contractor to a time extension. Excusable delays are further split into compensable delays, which also earn money, and non-compensable delays, which earn time only.
The Full Picture
The excusable delay concept exists because contracts fix a completion date, but some events that push it are no one's fault or are the owner's fault. Without a way to excuse those delays, the contractor would face liquidated damages or default for circumstances it could not control. Classifying delays gives both sides a framework for deciding who bears the time and the cost.
Mechanically, delays are usually sorted into three buckets. Non-excusable delays are the contractor's responsibility, such as poor productivity or late subcontractors, and earn nothing. Excusable, non-compensable delays are caused by neither party, such as unusually severe weather, strikes, or acts of government, and earn a time extension only. Excusable, compensable delays are caused by the owner or its agents, such as design changes, late approvals, or restricted site access, and earn time plus money. Federal contracts spell this out in clauses such as FAR 52.249-14 Excusable Delays.
In practice, a delay must also affect the critical path to earn a time extension, and the contractor must give notice as the contract requires. Force majeure clauses list qualifying events, and their wording matters: pandemics, supply chain disruption, and tariff changes have all tested whether a given clause covers an event. Weather clauses often require the weather to be abnormal compared with historical data, not merely bad.
In preconstruction, the contract's delay provisions determine how much risk the contractor is pricing. A precon team reviewing the contract checks the force majeure list, the weather standard, notice periods, and any no-damage-for-delay clause that could turn owner-caused delays into time-only events. Those terms should influence the schedule contingency and the general conditions carried in the bid.
Real Examples
Common Misconceptions
People assume: An excusable delay always means the contractor gets paid for the delay.
Actually: Many excusable delays are non-compensable. Weather, strikes, and other neutral events typically earn only time. Money usually requires the delay to be caused by the owner or its agents, and even that can be limited by no-damage-for-delay clauses.
People assume: Any bad weather is an excusable delay.
Actually: Most contracts excuse only unusually severe weather compared with historical norms for the location and season. Normal seasonal weather is expected to be built into the schedule.
Frequently Asked Questions
What's the difference between excusable and non-excusable delay?
An excusable delay is caused by events outside the contractor's control and without its fault, and it earns a time extension. A non-excusable delay is caused by the contractor or its subcontractors and suppliers, and the contractor bears the consequences, including possible liquidated damages.
What is a compensable delay?
A compensable delay is an excusable delay caused by the owner or those the owner is responsible for, such as the designer. It entitles the contractor to both additional time and the added costs of the delay, subject to the contract's terms.
Is force majeure an excusable delay?
Force majeure events, such as natural disasters, war, or government action, are typically excusable but non-compensable, meaning they earn time but not money. The specific events covered depend on the contract's force majeure clause.
What does a contractor need to do to get a time extension for an excusable delay?
Give timely written notice as the contract requires, show that the event was beyond its control, and demonstrate through schedule analysis that the event delayed the critical path and project completion.