Quick Answer: Delay and change order disputes are among the costliest problems on South Florida construction projects. Recovering time or money usually depends on three things: the contract’s notice and change order procedures, a reliable schedule analysis that shows what actually caused the delay, and documentation created while the work was happening. Florida generally enforces no-damages-for-delay clauses and liquidated damages provisions, subject to recognized exceptions, so contract language matters at every step.
Every construction project runs on a schedule, and nearly every South Florida project faces forces that threaten it: hurricane seasons, summer rain, permitting backlogs, material shortages, tariffs on imported steel and aluminum, labor constraints, design changes, unforeseen site conditions, and owner decisions made after the contract was signed. When the schedule slips or the scope changes, someone pays. Whether that is the owner, the general contractor, a subcontractor, or a design professional depends on the contract and on the evidence.
McArdle Franco PLLC, a Coral Gables law firm established in 2002, represents developers, owners, general contractors, subcontractors, architects, and engineers in land development and construction matters. The firm drafts and negotiates construction contracts and litigates construction disputes, and it was named a Tier 2 firm in Miami for Litigation – Construction in the 2026 edition of Best Law Firms®. As a Miami construction law firm, McArdle Franco helps clients manage delay and change risk before and during a project and recover or defend claims afterward. This article explains how these claims work.
Types of Delay
| Delay Type | Who Typically Bears It | Contractor’s Usual Remedy |
|---|---|---|
| Excusable, non-compensable | Shared | Time extension only |
| Excusable, compensable | Owner | Time extension and money |
| Non-excusable | Contractor | None; may owe liquidated damages |
| Concurrent | Shared | Usually time but not money |
Excusable Delays
Excusable delays are caused by events outside the contractor’s control, such as unusually severe weather, hurricanes, government actions, and other force majeure events. Contracts typically grant time extensions for these events but may not grant additional compensation.
Compensable Delays
Compensable delays are caused by the owner or those for whom the owner is responsible, such as late design information, owner-directed changes, differing site conditions, late owner-furnished materials, or interference with the contractor’s work. These delays can entitle the contractor to both time and money.
Non-Excusable Delays
Delays caused by the contractor’s own performance problems, such as inadequate staffing, subcontractor defaults, or poor coordination, are generally the contractor’s responsibility.
Concurrent Delays
When owner-caused and contractor-caused delays overlap on the critical path, courts and contracts often grant time but not money, and may excuse liquidated damages for the overlapping period. Concurrent delay is one of the most heavily contested issues in delay litigation.
The Critical Path
Not every late activity delays a project. Only delays to activities on the critical path, the longest sequence of dependent activities, extend the completion date. Proving a compensable delay therefore requires showing that the event affected the critical path, not just that something happened late.
Schedule Analysis Methods
| Method | Approach |
|---|---|
| As-planned versus as-built | Compares the original plan to actual performance |
| Time impact analysis | Inserts delay events into the schedule to model impact |
| Windows analysis | Examines successive schedule updates period by period |
| Collapsed as-built | Removes delay events from the as-built schedule |
Professional guidance, such as the AACE International recommended practice on forensic schedule analysis, describes these methods in detail. The right method depends on the quality of the project’s schedules and updates. A qualified scheduling expert is essential in significant delay claims.
Change Orders
The Change Order Process
Most construction contracts allow the owner to order changes in the work and require the contractor to perform them, with adjustments to price and time. Changes are typically documented through:
- Change orders signed by owner and contractor, agreeing on cost and time
- Construction change directives in which the owner directs the work before price is agreed
- Field orders or minor changes that do not affect cost or time
Constructive Changes
A constructive change occurs when the owner, architect, or engineer requires work beyond the contract scope without issuing a formal change order, for example through an interpretation of ambiguous plans, a demand for higher-quality materials, or an acceleration directive. Contractors must recognize constructive changes and give written notice promptly.
Pricing Changes
Contracts often specify how changes are priced, such as agreed unit prices, lump sums, or cost plus a fixed markup for overhead and profit. Disputes arise over markups, labor productivity, equipment rates, and the cost of delay and disruption caused by changes.
Notice Requirements
Notice provisions are frequently decisive. The AIA A201-2017 General Conditions, widely used in South Florida, require claims to be initiated within 21 days after the occurrence of the event giving rise to the claim or after the claimant first recognizes the condition. Many custom contracts impose even shorter deadlines.
Florida courts generally enforce contractual notice requirements, although outcomes can depend on whether the owner had actual knowledge, whether the owner was prejudiced, and whether the owner waived strict compliance through its conduct. Contractors should never rely on those arguments. Sending timely written notice of every potential claim is the most effective way to preserve rights.
A Coral Gables construction lawyer can help project teams build notice procedures into their daily operations.
No-Damages-for-Delay Clauses
Many owner-drafted contracts include no-damages-for-delay clauses, which limit the contractor to a time extension for owner-caused delays. Florida courts generally enforce these clauses when they are clear and unambiguous. Courts recognize exceptions for delays caused by fraud, concealment, misrepresentation, bad faith, or active interference by the owner, and for delays not contemplated by the parties. Whether an exception applies is a fact-intensive question.
On public projects, Florida statutes and public contracts may contain their own provisions on delay damages. Public owners are also subject to sovereign immunity limits that make written change orders and claims procedures even more important.
Liquidated Damages
Owners often include liquidated damages for late completion, expressed as a daily amount. Florida courts enforce liquidated damages provisions if the owner’s actual damages were difficult to determine at the time of contracting and the amount is not grossly disproportionate to the damages that might reasonably be expected. If the provision functions as a penalty, it may be unenforceable.
Contractors facing liquidated damages should evaluate:
- Whether the owner caused or contributed to the delay
- Whether time extensions were properly requested and wrongly denied
- Whether the owner waived liquidated damages through its conduct
- Whether substantial completion occurred earlier than the owner claims
- Whether the amount is a penalty
Recoverable Delay Damages
When a delay is compensable, contractors may seek:
| Category | Examples |
|---|---|
| Extended field overhead | Project staff, trailers, utilities, temporary facilities |
| Unabsorbed home office overhead | Often calculated using the Eichleay formula |
| Equipment costs | Idle or extended equipment |
| Escalation | Increased labor and material costs during the delay |
| Lost productivity | Inefficiency from disruption, stacking of trades, or acceleration |
| Subcontractor pass-through claims | Delay costs incurred by subcontractors |
| Financing costs | Extended bond and insurance premiums |
Consequential Damages Waivers
Many contracts, including the AIA A201, contain mutual waivers of consequential damages. These waivers can bar owners from recovering lost rental income or financing costs and bar contractors from recovering lost profits on other projects or home office overhead, depending on the language. Parties should understand what they are giving up before signing.
Acceleration
When an owner refuses a justified time extension and insists on the original completion date, the contractor may be forced to accelerate by adding labor, shifts, or equipment. This is known as constructive acceleration. Contractors may recover acceleration costs if they were entitled to a time extension, requested it, were denied, and incurred additional costs to meet the schedule. Documentation of the request, the denial, and the added costs is critical.
Differing Site Conditions and Design Problems
Differing Site Conditions
Unexpected subsurface conditions, such as unsuitable soils, buried debris, contamination, or high groundwater, are common in South Florida’s coastal geology. Many contracts include differing site conditions clauses that provide for adjustments when conditions differ materially from those indicated in the contract documents or from those ordinarily encountered.
Defective Plans and Specifications
Under the Spearin doctrine, recognized in Florida, an owner that furnishes plans and specifications generally impliedly warrants their adequacy. A contractor that follows defective owner-furnished plans may recover the resulting costs. Design-build contracts shift this risk to the design-builder.
Hurricanes and Force Majeure
Force majeure clauses address events such as hurricanes, named storms, pandemics, government orders, and supply chain disruptions. Key drafting questions include:
- Which events qualify
- Whether the event must actually affect the critical path
- Notice requirements and deadlines
- Whether the contractor receives time only or time and money
- How pre-storm preparation and post-storm cleanup costs are handled
- Whether material price escalation is covered
A Florida land development attorney drafting contracts for South Florida projects should address hurricane season expressly rather than relying on general force majeure language.
Documentation Wins Claims
Delay and change order claims are won or lost on records created during the project. Essential documentation includes:
- Baseline schedule and regular, accurate updates
- Daily reports with manpower, equipment, weather, and work performed
- Meeting minutes recording decisions and issues
- Requests for information and responses, with dates
- Notices of delay and claims, sent within contractual deadlines
- Change order logs tracking pending and approved changes
- Photographs and video with dates
- Cost records segregating changed and delayed work
Strategies for Owners and Developers
Owners can reduce delay and change exposure by:
- Completing design before bidding to reduce changes
- Including clear notice and claim procedures
- Requiring schedule updates in an agreed format
- Responding promptly to requests for information
- Using construction change directives to keep work moving while pricing is resolved
- Including liquidated damages tied to realistic estimates
A South Florida real estate development attorney can align these provisions with lender requirements and leasing or sales commitments that depend on completion dates.
Strategies for Contractors and Subcontractors
Contractors can protect themselves by:
- Reading notice provisions before work begins and training staff on them
- Sending written notice of every potential delay or change
- Pricing changes promptly and tracking unapproved work
- Maintaining accurate schedule updates
- Flowing down notice and change provisions consistently to subcontractors
- Avoiding release language in payment applications that waives pending claims
When Disputes Escalate
Delay and change order disputes often combine with payment disputes, lien claims, defect allegations, and termination. They may be resolved through negotiation, mediation, arbitration, or litigation. Because these disputes are document- and expert-intensive, early organization of records and engagement of scheduling and cost experts can improve outcomes. A South Florida construction defect attorney may also be needed when the owner responds to a delay claim with allegations of defective work.
Frequently Asked Questions
Can a contractor recover delay damages if the contract has a no-damages-for-delay clause?
Generally not, unless an exception applies, such as fraud, concealment, bad faith, active interference by the owner, or a delay not contemplated by the parties.
How quickly must a contractor give notice of a claim?
It depends on the contract. The AIA A201-2017 requires claims to be initiated within 21 days, and many custom contracts are stricter. Timely written notice is essential.
Are liquidated damages enforceable in Florida?
Yes, if actual damages were difficult to estimate when the contract was signed and the amount is not grossly disproportionate to anticipated damages.
What is the Eichleay formula?
It is a widely used method for calculating unabsorbed home office overhead during an owner-caused suspension or delay, based on the ratio of contract billings to total company billings.
What happens if both the owner and contractor caused delays?
Concurrent delays often result in a time extension without additional compensation, and may excuse liquidated damages for the overlapping period, depending on the contract and the facts.
Can a contractor stop work over an unpaid change order?
Stopping work carries significant risk of being found in default. Contracts usually require the contractor to continue performing while disputes are resolved. Legal advice should be obtained before any work stoppage.
Key Takeaways
- Only delays to the critical path extend the completion date.
- Timely written notice is the single most important step in preserving claims.
- Florida generally enforces no-damages-for-delay and liquidated damages clauses, with exceptions.
- Consequential damages waivers can limit both owners and contractors.
- Contemporaneous documentation and expert schedule analysis win delay claims.
About McArdle Franco PLLC
McArdle Franco PLLC is a Coral Gables law firm established in 2002 that counsels and represents businesses throughout Florida, across the nation, and internationally in land development and construction, real estate, business structuring, transaction structuring, and business litigation. The firm represents developers, property owners, contractors, subcontractors, commercial tenants, architects, engineering firms, mortgage lenders, and commercial lenders. The firm was named a Tier 2 firm in Miami for Litigation – Construction in the 2026 edition of Best Law Firms® and was ranked in Chambers USA 2025 for Litigation: General Commercial in Florida.
Contact McArdle Franco PLLC
Address: 255 Alhambra Circle, Suite 925, Coral Gables, FL 33134
Phone: (305) 442-2214
Website: mcardlefranco.com
This article provides general information and is not legal advice. Consult a qualified attorney about your specific situation.
Sources and Further Reading
- AIA A201-2017 General Conditions of the Contract for Construction – American Institute of Architects
- Recommended Practice 29R-03, Forensic Schedule Analysis – AACE International
- United States v. Spearin, 248 U.S. 132 (1918) – U.S. Supreme Court
- Eichleay Corp., ASBCA No. 5183 (1960) – Armed Services Board of Contract Appeals
- Florida Construction Lien Law, Chapter 713, Florida Statutes – Florida Legislature
- Local Government Prompt Payment Act, Sections 218.70–218.80, Florida Statutes – Florida Legislature
- Construction Contracts; Limitation on Indemnification, Section 725.06, Florida Statutes – Florida Legislature
- Florida Arbitration Code, Chapter 682, Florida Statutes – Florida Legislature
- Land Development and Construction Practice – McArdle Franco PLLC
- Best Law Firms 2026 Rankings – McArdle Franco PLLC Press Release
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