FORCE MAJEURE

• Force majeure means a condition beyond party’s control

• From contractor’s standpoint - owner caused delay is force
majeure (even though delay was within owner’s control)
• Inclement weather, flood - force majeure from both parties’
standpoint
• Common conditions of force majeure
– Acts of God, war, riots, labor strikes, inability to obtain
critical materials when all proper procurement actions have
been taken, and other similar situations
– Failure of prime contractor’s subcontractors or material
suppliers to meet time requirements due to conditions
beyond control. This is a heavy burden of proof
 FORCE MAJEURE
• Contract relief for conditions of Force Majeure
– Contract relief for conditions of force majeure normally is
an extension of time to avoid unfair assessment of
liquidated damages
– Resulting delay is contractually excusable
– If an enforceable no-damages-for delay clause is absent in
contract and if the condition is caused by the owner, the
delay is also compensable, entitling the contractor to both
time extension & additional payment
• Time extensions
– Though time extensions are promised by contract, they are
far from automatic
– Contractor should follow prescribed contract procedures &
must prove entitlement to assure that contractually justified
time extensions will be forthcoming
 FORCE MAJEURE

• Importance of notice of claim

– Contractor claiming time extension must file notice of
claim within a stated no. of calendar days from the event
giving rise to claim or waive the right to relief
– Although sometimes owner possesses constructive notice
of cause of the delay - important for contractor to file time
extension claims within contractually prescribed time
– If contractor has not requested time extension the owner is
not responsible
– When contractor has been delayed - immediate written
request for time extension must be made
– Initial notice should be followed by written claim for the
no. of days that contract has been delayed
– Claim filed at earliest possible time so that extent of delay
can be determined
 FORCE MAJEURE

• Contractor responsibility to prove entitlement

– In any type of claim situation whether for time, additional
contract payment, or both, the contractor bears the legal
burden to prove entitlement under contractual terms to
whatever is being claimed
– Contractor must support a time extension claim showing
that delaying events have extended contract completion
– Usually done by supporting claim with Critical Path
Method (CPM) schedule analysis indicating extent of
overall delay of project
 FORCE MAJEURE

• Owner’s responsibility and contractor time extension

requests
– CPM schedule analysis indicating delay and request for
discrete no. of days in accordance with CPM result -
submitted to owner in support of contractor’s claim
– If time extension claim is properly supported, owner has a
duty to grant the time extension
– Failure of owner to grant a properly supported request for
time extension or failure to grant in timely manner is
breach of contract
 FORCE MAJEURE

• Granting of time extensions

– A time extension can only be granted by a formal change to
the contract executed by the owner
– Contract date not extended until and unless owner formally
notifies the contractor by a change to the contract
– Following the receipt of contractor’s claim of time
extension if a change to contract is not initiated - contractor
must assume that claim has been denied
– If owner fails to act or denies properly supported time
extension claim - contractor’s course of action is clear
• First a notice to be filed, in writing, protesting the denial
or lack of timely action
 FORCE MAJEURE

• Secondly - contractor should take all possible &

reasonable action to meet unextended contract
completion date - because failure to prosecute the work
by the then existing completion date is a contractual
breach - results in termination of contract for default
– Contractor’s proper position (after protesting and writing)
is to meet unextended completion date & pursue remedy
under the doctrine of constructive acceleration