May a contract provide a daily or weekly rate for contractor loss caused by employer delay?
The parties may agree a daily or weekly payment for loss and expense or additional cost arising from employer delay. The provision must define when the rate applies, what it covers and which claims remain available separately.
Yes, provided the drafting states the trigger, period, scope and legal effect of the rate
A pre-agreed rate can reduce the time and cost of valuing prolongation after employer delay. The clause should identify the relevant employer-risk events, the period for which payment accrues, the treatment of concurrent delay, notice and records, and whether the rate is the exclusive financial remedy. It should also state whether subcontractor claims are included. Delay that disrupts progress without extending completion requires separate treatment unless the clause expressly includes it.
| Issue | Position |
|---|---|
| Trigger | Defined employer-risk delay |
| Accrual | Specified day or week and start and end points |
| Coverage | Express heads of cost |
| Subcontractors | Included or excluded expressly |
| Disruption without prolongation | Separate unless expressly covered |
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