A. In General
Whether an owner recovers, absorbs, or becomes liable to the
contractor for costs associated with time impacts largely depends
upon the specific events causing the time impact and the terms of
the contract. Often these issues turn on the existence and language
of time-related clauses in the contract, such as a "time is of
the essence" clause, time extension clause, force majeure
clause, liquidated damages clause, waiver of damages clause,
"no damages for delay" clause, acceleration clause and
the like.
Even though these issues are fact dependent, they can be
classified by asking whether the impact is excusable and, if so,
whether it is compensable. Unless altered by contract, an impact to
the contractor's time of performance is normally excusable if
it was caused by an event or condition that was not the fault and
beyond the control of the contractor, including its subcontractors
and suppliers. Absent an exculpatory clause, an impact to
