No-damage-for-delay clauses in the United States

NDFD at a glance

Default position: Presumptively enforceable at common law in most states, subject to exceptions.
Federal contracting: Not a feature of standard FAR contracting: a CO cannot waive FAR 52.242-14 / 52.243-4 remedies.
Strongest common-law exception: Bad faith / active interference: includes refusal to issue warranted time extensions.
Broadest statutory ban: Ohio Rev. Code § 4113.62(C): public and private, no unreasonableness qualifier.
States reaching private contracts: Ohio, Washington, Kentucky: the exception to the public-works-only pattern.
Verified statute states: California, Ohio, Washington, Virginia, Oregon, Minnesota, Missouri, Kentucky (8).
Secondary-source-only states: Colorado, Louisiana, North Carolina, Kansas, Nevada, New Jersey, Arizona, Indiana (8), unverified.
2024–2026 legislative activity: No new NDFD statute enacted. Energy went to retainage caps (NY SB 5655, CA SB 61).

No-damage-for-delay is the single largest axis of intra-US variation in delay law. The identical clause, in the identical form contract, can be fully enforceable on a project in Houston and void as a matter of public policy on a project in Cleveland. An article, or a claim strategy, that does not name the state has not scoped itself.

The general position

NDFD clauses are presumptively enforceable at common law in most US jurisdictions, subject to a set of judicially created exceptions and, in a minority of states, to statutory override. There is no federal common law of NDFD for private work and no uniform national rule: enforceability is decided state by state, and within a state it can turn on whether the project is public or private.

NDFD is not a feature of standard federal construction contracting. FAR 52.242-14 (Suspension of Work) and FAR 52.243-4 (Changes) supply remedies that a Contracting Officer cannot waive by contract drafting. There is no federal analogue to a state NDFD clause sitting inside the standard FAR delay machinery. [GAP, not in corpus: a district court has reportedly held NDFD clauses per se enforceable on federally funded works in California where federal contracting rules displace state law, but the corpus flags this as headline-only and unverified, so it is not asserted here as fact.]

The common-law exceptions

Even where no statute applies, an NDFD clause is not absolute. US courts recognize a set of exceptions that let a contractor recover delay damages despite the clause:

Bad faith, active interference, fraud or misrepresentation: the most widely adopted exception, and the one most often successfully invoked. Some jurisdictions extend it to gross negligence. Courts have found active interference in specific owner directives disrupting sequence, administrative mismanagement, an excessive volume of changes, denial of site access, failure to coordinate separate contractors, and refusal to issue warranted time extensions. See Port of Houston Authority v. Zachry Construction Corp. (Tex.). This is the same active-interference ground discussed as the NDFD escape hatch in the prevention-principle analysis, and is not re-derived here. See the related article on prevention and time at large.
Delay not contemplated by the parties: an NDFD clause covers only delay that is reasonably foreseeable, arises from the contractor's work during performance, or is mentioned in the contract: Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297 (1986), the leading US authority. Many jurisdictions reject this exception outright.
Delay so unreasonable in length or duration that it amounts to abandonment of the contract.
Fundamental breach or failure of a condition precedent to performance. Rarely applied.
The clause does not by its terms cover the delay: strict construction against the drafter.
Third-party beneficiary limits: a clause protecting the owner does not automatically protect a construction manager, design professional, or upstream contractor not named in it.
Waiver or estoppel arising from owner conduct, approvals, or representations.

The contractor's own failure to give contractual notice of delay is a complete answer in most jurisdictions, and is expressly preserved by every state anti-NDFD statute surveyed below.

The statute survey

Roughly half the states have gone further than the common-law exceptions and enacted a statute voiding or limiting NDFD clauses outright, typically for public work. The corpus draws a hard evidentiary line between statutes verified against statutory text and statutes reported only by secondary sources. That line is preserved below rather than flattened into one undifferentiated list.

Do not read "public work only" as the rule across the board. Ohio, Washington and Kentucky are explicit exceptions that reach private contracts too.

Verified from statutory text

State	Citation	Scope	Effect
California	Cal. Pub. Contract Code § 7102	Public agency contracts and subcontracts thereunder	Void where delay is unreasonable and not within the parties' contemplation. Agencies cannot require waiver of the section. Preserves notice, arbitration/settlement and liquidated damages
Ohio	Ohio Rev. Code § 4113.62(C)(1)–(2)	Public and private. Prime contracts and subcontracts	Void as against public policy where delay is a proximate result of the owner's act or failure to act, with no "unreasonableness" qualifier, the broadest ban in the US
Washington	RCW 4.24.360	Public and private construction contracts	Void and unenforceable for unreasonable delay caused by the contractee. Preserves notice, arbitration/settlement and reasonable liquidated damages
Virginia	Va. Code § 2.2-4335(A)	Public construction contracts	Void for unreasonable delay caused by acts or omissions within the public body's control, (B) preserves the public body's own recovery, notice, LDs and dispute procedures. Leading case: Blake Constr. Co./Poole & Kent v. Upper Occoquan Sewage Auth., 587 S.E.2d 711 (Va. 2003)
Oregon	ORS 279C.315	Public improvement contracts	Void for unreasonable delay caused by the contracting agency. Preserves notice, arbitration/settlement and reasonable LDs
Minnesota	Minn. Stat. § 15.411	Public works contracts, state and political subdivisions	Subd. 2 voids waivers of costs, damages or equitable adjustment for entity-caused delay. Subd. 4 preserves notice, reasonable LDs and arbitration
Missouri	Mo. Rev. Stat. § 8.962 (post-2022. Formerly § 34.058)	Public works contracts, state, counties, cities and political subdivisions, excluding MoDOT	Void where delay is within the public entity's control. Preserves contractor-caused-delay limits, notice, reasonable LDs and arbitration
Kentucky	KRS § 371.405(2)(d) (Kentucky Fairness in Construction Act)	Public and private	Void: a provision purporting to waive a contractor's right to costs, additional time, or damages for delay within the contracting entity's control. Notice and claim-preservation requirements are not barred by the KFCA. The statute kills the clause, not the time bar

Reported by secondary sources only: verify before citing

State	Citation	Reported effect
Colorado	Colo. Rev. Stat. § 24-91-103.5	Public contracts. Voids NDFD for delay caused by the public entity. Citation confirmed by two independent secondary sources. Statutory text not retrieved
Louisiana	La. R.S. 38:2216(H)	Public contracts. Voids NDFD. [UNVERIFIED]
North Carolina	N.C. Gen. Stat. § 143-134.3	Public contracts. Unenforceable only where delay is caused solely by the owner or its agent, narrower than most
Kansas	Kan. Stat. Ann. § 16-1907	Public contracts. Void, unenforceable, against public policy. [UNVERIFIED]
Nevada	Nev. Rev. Stat. § 338.485	Public contracts. Unenforceable for unreasonable-length delay or delay from fraud, active interference or scope additions. Private contracts generally enforceable. [UNVERIFIED]
New Jersey	N.J. Stat. Ann. § 2A:58B-3	Public contracts. Unenforceable where the entity's negligence, bad faith, active interference or other tortious conduct caused the delay. [UNVERIFIED]
Arizona	A.R.S. § 41-2617	State governmental contracts. Does not void NDFD outright. Requires a negotiation provision for unreasonable owner-caused delay not within contemplation. [UNVERIFIED]
Indiana	No citation located	Reported as prohibited for unforeseen conditions encountered during a project. [UNVERIFIED] No citation given by the source.

Correcting two circulating errors

Rhode Island has no located NDFD statute. No citation was found despite the search. A construction compendium for the state does not discuss NDFD clauses at all, and a widely circulated 50-state matrix lists Rhode Island among states with no case law on the subject. Rhode Island does have separate statutes on construction indemnity and anti-lien-waiver, but those are different subject matter entirely. Rhode Island appears in several circulating NDFD lists in error: treat any list that shows it as a statutory-ban state as wrong unless a citation is produced. The negative finding is itself the useful fact here.

Oregon is also miscategorized by at least one matrix. The same widely circulated matrix that mislists Rhode Island erroneously groups Oregon among "generally enforceable / no case law" states, but ORS 279C.315, cited in the table above, is on the books and belongs in the verified column, not the unenforceable-with-no-authority one.

Three state decisions the corpus was missing

Decision	Point
Scoccolo Construction v City of Renton, 158 Wn.2d 506 (Wash.)	A utility "acting for" the owner voids the NDFD clause. Directly useful wherever third-party utility delay is in play, and an under-cited point
Plato General Construction v Dormitory Authority of the State of New York	Narrows Corinno Civetta sharply. Do not cite Corinno Civetta's "delay not contemplated" exception in New York without reading Plato first
Asset Recovery Contracting, LLC v Walsh Construction Co. (Ill.)	Sets out Illinois's four exceptions. The cleanest single-state statement of the exception structure

And the Kentucky refinement, now pinned to a subsection: the KFCA kills the NDFD clause, but notice and claim-preservation requirements survive and are strictly enforced under KRS § 371.405(3)(b), a separate subsection from the delay-waiver ban itself (see the Kentucky row in the verified table above).

What 2024–2026 did not bring

No new state statute voiding or limiting NDFD clauses was enacted in 2024, 2025, or the first seven months of 2026. The legislative energy in that window went elsewhere: New York SB 5655 (signed December 2025) and California SB 61 (effective January 2026) both cap retention at 5%. Those bills matter to cash flow during a delay dispute, but they are retainage and prompt-payment law, not NDFD law, and should not be conflated with the subject of this survey.

Practice notes

Name the state and the public/private axis first

Name the state, and confirm whether the project is public or private, before assessing whether an NDFD clause will hold. The answer genuinely differs by both axes.

Three statutes reach private contracts too

Do not assume "public work only": Ohio, Washington and Kentucky reach private contracts too.

Lead with active interference where the facts allow

Lead with active interference / bad faith if the facts support it. It is the exception that most often works, and includes an owner's refusal to issue warranted time extensions.

Unreasonable delay is the usual statutory threshold

"Unreasonable delay" is the operative threshold in most of the verified statutes: California, Washington, Virginia and Oregon all use it. Ohio does not, which is why it is the broadest ban in the survey.

A dead NDFD clause does not cure a notice failure

Killing the NDFD clause does not rescue a claim barred by notice failure. Every statute in this survey expressly preserves the notice requirement, and Kentucky's high court has confirmed the KFCA kills the clause but leaves claim-preservation and notice strictly enforced.

Notice compliance is analyzed separately. See the notice-and-time-bars article in this cluster for the mechanics of what a valid notice requires and when the clock starts.

Authorities

California: Cal. Pub. Contract Code § 7102 Cal. Pub. Contract Code § 7102 (am. Stats. 1987, ch. 98, § 1)Public agency construction contracts and subcontracts thereunder: clauses limiting recovery to a time extension do not preclude damages for unreasonable, uncontemplated delay. Agencies cannot require waiver of the section. Preserves notice, arbitration/settlement and liquidated damages.Verified from statutory text
Ohio: Ohio Rev. Code § 4113.62(C)(1)-(2) Ohio Rev. Code § 4113.62(C)(1), (C)(2) (eff. 22 Mar 2001)Public and private, prime contracts and subcontracts: void and unenforceable as against public policy where the delay is a proximate result of the owner's act or failure to act, with no "unreasonableness" qualifier, the broadest ban in the US.Verified from statutory text
Washington: RCW 4.24.360 RCW 4.24.360Public and private construction contracts: clauses waiving damages or an equitable adjustment for unreasonable delay caused by the contractee are void and unenforceable as against public policy. The statute preserves notice, arbitration/settlement and reasonable liquidated damages.Verified from statutory text
Virginia: Va. Code § 2.2-4335(A) Va. Code § 2.2-4335(A)Public construction contracts: void as against public policy for unreasonable delay caused by acts or omissions of the public body within its control, (B) preserves the public body's own recovery, notice, LDs and dispute procedures.Verified from statutory text
Oregon: ORS 279C.315 ORS 279C.315Public improvement contracts: void for unreasonable delay caused by the contracting agency. Preserves notice, arbitration/settlement and reasonable liquidated damages.Verified from statutory text
Minnesota: Minn. Stat. § 15.411 Minn. Stat. § 15.411 (2002 Minn. Laws ch. 299, § 1)Public works contracts of the state and political subdivisions: subd. 2 voids clauses waiving rights to costs, damages or an equitable adjustment for entity-caused delay. Subd. 4 preserves notice, reasonable LDs and arbitration.Verified from statutory text. Not § 337.10, which is a different subject (progress payments/retainage)
Missouri: Mo. Rev. Stat. § 8.962 Mo. Rev. Stat. § 8.962 (post-2022. Formerly § 34.058)Public works contracts of the state, counties, cities and political subdivisions, excluding MoDOT: void where delay is within the contracting public entity's control. Preserves contractor-caused-delay limits, notice, reasonable LDs and arbitration.Verified from statutory text. Transferred from § 34.058 in 2022. Cite § 8.962 for post-2022 work
Kentucky: KRS § 371.405(2)(d) (Kentucky Fairness in Construction Act) KRS § 371.405(2)(d)Public and private: void a provision purporting to waive a contractor's or subcontractor's right to costs, additional time, or damages, or an equitable adjustment, for delay within the contracting entity's control. Claim-preservation and notice requirements are not barred by the KFCA and are strictly enforced, and that survival is itself pinned to a separate subsection, KRS § 371.405(3)(b).Verified from statutory text. Delay provision is subsection (2)(d), not (2)(c). The notice/claim-preservation carve-out sits at subsection (3)(b)
Colorado: Colo. Rev. Stat. § 24-91-103.5 Colo. Rev. Stat. § 24-91-103.5Reported to void NDFD in public contracts where the delay is caused by the contracting public entity.Reported by secondary sources only. Citation confirmed by two independent secondary sources, statutory text not retrieved
Louisiana: La. R.S. 38:2216(H) La. R.S. 38:2216(H)Reported to void NDFD in public contracts.: reported by secondary sources only
North Carolina: N.C. Gen. Stat. § 143-134.3 N.C. Gen. Stat. § 143-134.3Public contracts: unenforceable only where delay is caused solely by the owner or its agent, narrower than most states in the survey.Reported by secondary sources only. Narrower 'solely' causation qualifier
Kansas: Kan. Stat. Ann. § 16-1907 Kan. Stat. Ann. § 16-1907Reported void, unenforceable and against public policy for public contracts.: reported by secondary sources only
Nevada: Nev. Rev. Stat. § 338.485 Nev. Rev. Stat. § 338.485Public contracts: reported unenforceable for unreasonable-length delay or delay from fraud, active interference or scope additions. Private contracts generally enforceable.: reported by secondary sources only
New Jersey: N.J. Stat. Ann. § 2A:58B-3 N.J. Stat. Ann. § 2A:58B-3Public contracts: reported unenforceable where the entity's negligence, bad faith, active interference or other tortious conduct caused the delay.: reported by secondary sources only
Arizona: A.R.S. § 41-2617 A.R.S. § 41-2617State governmental contracts: does not void NDFD outright. Requires a provision obliging the parties to negotiate recovery for unreasonable, uncontemplated owner-caused delay.: reported by secondary sources only. Does not void NDFD, requires a negotiation provision
Indiana: no citation located Not supplied by the sourceReported as prohibited "in the case of unforeseen conditions encountered during a project". No statutory citation given. No citation given by the source.
Port of Houston Authority v Zachry Construction Corp. (Tex.). Reporter citation not supplied by the sourceActive interference, including refusal to issue warranted time extensions, as an exception to an NDFD clause.Secondary source. Not independently re-verified this pass
Corinno Civetta Constr. Corp. v City of New York 67 N.Y.2d 297 (1986)The leading US authority for the "delay not contemplated by the parties" exception to NDFD clauses. Many jurisdictions reject this exception.Secondary source. Not independently re-verified this passFind on CourtListener →
Blake Constr. Co./Poole & Kent v Upper Occoquan Sewage Auth. 587 S.E.2d 711 (Va. 2003)Leading Virginia case applying Va. Code § 2.2-4335(A)'s NDFD override.Secondary source. Not independently re-verified this passFind on CourtListener →
Scoccolo Construction, Inc. v City of Renton 158 Wn.2d 506 (Wash.)A utility "acting for" the owner falls inside the NDFD clause's scope for purposes of voiding it: third-party utility delay is not automatically outside an NDFD clause's reach just because the utility itself isn't the owner.Secondary source. Not independently re-verified this pass.
Plato General Construction Corp. v Dormitory Authority of the State of New York (N.Y.)Sharply narrows the *Corinno Civetta* "delay not contemplated by the parties" exception. A court should not apply *Corinno Civetta*'s exception in New York without reading *Plato* first.Secondary source. Not independently re-verified this pass.
Asset Recovery Contracting, LLC v Walsh Construction Co. (Ill.)Sets out Illinois's four common-law exceptions to NDFD enforceability: the cleanest single-state statement of the exception structure in the corpus.Secondary source. Not independently re-verified this pass.

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 September 1, 2026 · Report a correction

No-Damage-for-Delay Clauses: Enforceable in Texas, Void in Ohio