Prolongation and delay costs

The two are almost never the same weeks, and the difference is usually large. A project delayed by late design information in month seven, when three subcontractors and a tower crane were on site, does not recover that cost by pricing the final two months of a job that has already demobilised down to a snagging team. The claim is arithmetically wrong before anyone reaches the entitlement argument.

The four-element test every extension of time claim has to satisfy gets you through the first gateway. Everything below is the second one.

Does an extension of time come with money?

No, not of itself, under any of the major standard forms. SCL Delay and Disruption Protocol, 2nd Edition (February 2017), Core Principle 12 states the position squarely: entitlement to an extension of time does not automatically lead to entitlement to compensation, and entitlement to compensation does not automatically carry an extension of time. Time and money are conferred by different clauses, on different lists, against different tests.

FIDIC Red Book 2017 (reprinted 2022) is the cleanest structural illustration. Sub-Clause 8.5 confers no payment entitlement of itself. Of its five grounds, (c) exceptionally adverse climatic conditions, (d) Unforeseeable shortages of personnel or Goods caused by epidemic or governmental action, and (e) delay, impediment or prevention caused by the Employer all give time only under the standard form. Money must come through ground (b), the cross-referencing limb, and then only where the Sub-Clause engaged grants both extension of time and Cost: Sub-Clause 1.9 Errors in the Employer's Requirements, Sub-Clause 2.1 Right of Access, Sub-Clause 4.12 Unforeseeable Physical Conditions. Ground (e) is the one most often assumed to carry money and does not. A contractor delayed by the Employer under an unamended FIDIC form must look to the governing law, in breach or prevention, for its cost.

(A drafting caution. The substance of the Sub-Clause 8.5 grounds (a)–(e) is verified, but the wording circulating in commentary is paraphrase rather than the printed text. Obtain the form before putting quotation marks around any of it.)

JCT does the same thing with different vocabulary: Relevant Events give time, Relevant Matters give money, and the two lists are not identical. CCDC 2 – 2020 is starker still: GC 6.5.3 is a pure time-only regime.

Which events give time but not money?

The neutral events (weather, epidemic, strikes, casualty) give time and no money under almost every standard form. That is the contract's deliberate decision that some risks belong to neither party's fault but should nonetheless not be paid for: the contractor gets relief from liquidated damages, the employer gets a longer programme at no cost. The grid below is form-default only. The enumerated lists are amended on most major projects.

T = time only. T+M = time and money.

Form-default positions. Bespoke amendment to these provisions is normal on major projects, and the executed contract governs.

The JCT 2024 opt-in is the commercially significant entry in that table. Under JCT Design and Build 2024, epidemic at cl 2.26.7 and change in law at cl 2.26.8 give time as of right, but money only where the corresponding Relevant Matter option has been selected in the Contract Particulars. The Relevant Matters sit at cl 4.21. (The sub-clause numbers reported for them, epidemic at 4.21.6 and change in law at 4.21.7, come from a secondary briefing and were not read from the contract text. Check the executed contract rather than relying on those numbers.) A contractor that assumes symmetry between the Relevant Events list and the Relevant Matters list has priced the wrong risk, and this is the point most often missed in tender review. There is also no reported English judgment construing the JCT 2024 extension of time provisions or the new epidemic and change-in-law Relevant Events as at August 2026, every 2025–26 English decision in this area was on a 2016 form.

Which weeks does a prolongation claim actually pay for?

The weeks in which the effect of the employer risk event was felt, not the extended period at the end of the job. SCL Delay and Disruption Protocol, 2nd Edition (February 2017), Core Principles 20 and 22 assess prolongation compensation by reference to the actual window of impact, at the cost levels prevailing then. Claiming the tail-end period is a common error and an easily attacked one.

The reason it is easily attacked is factual rather than doctrinal. Site establishment during an impact window in the middle of a project typically carries full supervision, plant on hire, accommodation, security and temporary works. The same establishment during a two-month overrun after practical completion of the main structure is a fraction of that. A claim priced on the tail therefore either understates recovery, if the impact window was resource-heavy, or overstates it grossly, if the impact window was quiet, and it is the overstatement that gets found, because the respondent's quantum expert only has to overlay the resource records on the claimed period.

The corollary is that a prolongation claim is a windowed claim from the outset. It needs the critical-path analysis to identify the weeks, and it needs cost records mapped to those same weeks. Where the contemporaneous cost records are not tied to identified events and periods, the claim degrades into a total-cost claim, and concurrency then defeats it outright.

What prolongation is made of, and why disruption is a different claim

Prolongation is the time-related cost of running the site and the business for longer than the contract priced for. Disruption is loss of productivity. The same work done less efficiently. They are measured against different things and they must be pleaded and priced separately.

The measurement bases are not the same. A prolongation claim is measured against the additional time-related cost actually incurred during a period of critical delay: the question is how long, and what it cost to be there. A disruption claim is measured against the productivity that would have been achieved but for the disturbance: the question is how much less work was got out of the same labour and plant hours, and it is answered by comparison: measured mile, benchmark, or, for the cumulative effect of multiple undifferentiated changes, the framework in AACE International RP 130R-23 (15 May 2023).

The double-recovery trap is the single most common quantum error in this area: claiming site overhead as prolongation and then again inside a loss-of-productivity calculation that has already absorbed it. Segregate the two, and say in the submission how you have segregated them. A claim that does not explain the segregation invites the respondent to assume there is none.

Unabsorbed home-office overhead, Eichleay and the FAR profit asymmetry

In US federal construction the money question is decided largely by which clause you route the claim through, and by whether you can prove standby. Both points are checkable against the clause text and both are worth real money on the same set of facts.

The profit asymmetry. Equitable adjustments under FAR 52.243-4 Changes (Jun 2007) and FAR 52.236-2 Differing Site Conditions include profit. The adjustment under FAR 52.242-14 Suspension of Work (Apr 1984) excludes profit. Same delay period, same underlying facts, different clause, different recovery. FAR 52.242-14 also carries its own bars: paragraph (c) bars recovery of costs incurred more than 20 days before the contractor gives written notice, other than for a formal suspension order, and requires the claim to be asserted not later than final payment. Where the facts permit the election, Changes is the stronger vehicle. Note also the practice warning that applies to all of this in 2025–26: under the Revolutionary FAR Overhaul, model deviation text is effective by class deviation, agency by agency, so read the clause as incorporated in the contract, not the FAR on acquisition.gov.

Eichleay is the exclusive method for unabsorbed home-office overhead in US federal contracting where contract performance has begun. Its origin is Eichleay Corp., ASBCA No. 5183, 60-2 BCA ¶ 2688, aff'd on recon., 61-1 BCA ¶ 2894 (1960). A citation that is universally repeated but was not independently verified for this corpus, so confirm it before putting it in a pleading. The formula is three steps: the contract's share of overhead is contract billings divided by total company billings for the contract period, multiplied by total home-office overhead for that period, the daily rate is that allocable overhead divided by actual days of contract performance, recovery is the daily rate multiplied by days of compensable government-caused delay.

The standby requirement is the chokepoint. The prerequisites are stated in P.J. Dick, Inc. v Principi. The reporter cite generally given is 324 F.3d 1364 (Fed. Cir. 2003), and it too was not independently confirmed: as restated in Nicon, Inc. v United States, 331 F.3d 878 (Fed. Cir. 2003): government-caused delay of uncertain duration, a delay that extended the original performance period or caused additional cost despite timely completion, and a contractor on standby and unable to take on other work. A suspension with a known end date, or one during which the contractor took on replacement work, defeats the claim. Eichleay is not an extended-general-conditions claim, field overhead is proved directly.

The live 2024–25 development is the CBCA's "sole cause" gloss on FAR 52.242-14, which operates as a concurrency defence against both suspension costs and Eichleay recovery. In Lusk Mechanical Contractors, Inc. v GSA, CBCA 7759 (30 April 2024), a Governor's COVID stay-at-home order was an equal cause of the suspension alongside the Contracting Officer's order, so the Government was not the sole proximate cause and the suspension claim failed. In Quality Trust, Inc. v Department of the Interior, CBCA 7451 (4 April 2025), suspension and Eichleay recovery were denied because the Government was not the sole cause and the contractor had agreed to the suspensions. Reconsideration was denied in CBCA 7451-R on 18 August 2025. The practical effect is that where any independent cause contributes to the suspension period, 52.242-14 becomes a weak vehicle, which reinforces the election point above.

That gloss is the federal expression of a general rule: concurrency usually costs the contractor the money rather than the time.

No-damage-for-delay clauses: the wall this claim runs into in the United States

No-damage-for-delay clauses are presumptively enforceable at common law in most US jurisdictions, subject to judicially created exceptions and to statutory override in a minority of states. There is no federal common law of NDFD for private work and no uniform state rule. Any US delay article that does not name the state has not scoped itself. The same clause can be fully enforceable in one state and wholly void in another.

Eight state statutes are verified from statutory text:

Jurisdictional. Read from statutory text in eight named states. Blake (Va. 2003), the only decision cited, is a Supreme Court of Virginia authority.

Eight further states (Colorado, Louisiana, North Carolina, Kansas, Nevada, New Jersey, Arizona and Indiana) are reported to have anti-NDFD provisions on the basis of secondary sources only, and the statutory text was not retrieved for any of them. North Carolina's reported provision is narrower than most, reaching only delay caused solely by the owner or its agent, and Arizona's reported provision does not void NDFD clauses outright at all. Do not cite that second group without checking the statute.

Rhode Island is an error. It appears in several widely circulated fifty-state lists, but no Rhode Island statute voiding or limiting NDFD clauses was located. Rhode Island has construction indemnity and anti-lien-waiver statutes, which are different subject matter. Treat "Rhode Island" in any NDFD list as wrong unless a citation is produced.

Three practical points close this out. First, most anti-NDFD statutes reach public work only: Ohio, Washington and Kentucky are the significant exceptions covering private contracts. Second, the statutes almost universally preserve the notice requirement. Killing the NDFD clause does not rescue a claim that was never notified, and the Kentucky Supreme Court has held that claim- preservation and notice requirements survive the Kentucky Fairness in Construction Act and will be strictly enforced. Third, and stated as a recorded negative finding: no new US state statute voiding or limiting no-damage-for-delay clauses was enacted between 2024 and August 2026. The legislative energy in that window moved to retainage and prompt payment, which affects cash flow during a delay dispute but not NDFD enforceability.

Where no statute applies, the exception that most often works is active interference, and a recognised instance of it is the owner's refusal to issue warranted time extensions.

Delay damages run both ways

Prolongation is the contractor's side of a two-sided mechanism. The owner's side is liquidated damages, and what an extension of time actually buys the contractor is relief from them up to the extended date: nothing more, unless a separate money clause is engaged.

(The AIA A201–2017 §15.1.7 section number and the substance of the waiver and the liquidated-damages carve-out are verified. The exact 2017 wording was not confirmed verbatim. Describe it. Do not quote it.)

The asymmetry is worth naming. In a minority but significant group of US states applying the non-apportionment rule, an owner responsible for any portion of the delay under a contract with no apportionment clause loses the entire liquidated damages entitlement rather than a pro-rata share, Biemann & Rowell Co. v Donohoe Cos., 556 S.E.2d 1 (N.C. Ct. App. 2001). In those states a contractor's most valuable defensive move is not attacking the rate as a penalty. It is proving one day of owner-caused critical delay. AIA A201–2017 contains no apportionment provision.

Price the weeks in which the effect was felt

The instruction is short and routinely ignored: identify the weeks in which the effect of the employer risk event was actually felt, price those weeks at the resource levels that prevailed then, and keep the prolongation claim on its own footing.

That last point deserves its own sentence, because it is where otherwise sound claims get discounted for double counting. Where a variation arising from the same event has been valued with an overhead and profit allowance built into the rates: AIA A201–2017 §7.3.4 uses a closed cost list with a reasonable allowance for overhead and profit, and CCDC 2 – 2020 GC 6.3 carries a 10% allowance where not otherwise agreed, then recovering the same time-related site overhead again as prolongation for the same period is double recovery. Say which cost sits in the variation valuation and which sits in the prolongation claim, and say it in the submission rather than under cross-examination.

About this material Library content is general information about construction claim practice, not legal advice. Entitlement, deadlines and procedure are governed by your own contract and by the law of the place the work is performed. Reviewed August 7, 2026 · Report a correction