- No single US rule
- Federal contracting, private AIA-form work, and state law on no-damage-for-delay clauses give materially different answers on the same facts. Any US delay analysis that doesn't name the contract regime and, for private work, the state, has not scoped itself.
- Critical-path proof is close to mandatory
- Boards and the Court of Federal Claims generally require CPM scheduling to prove delay occurred on the critical path except for the simplest claims. The commonest reason a US delay claim fails is that nobody ran the analysis.
- No prevention principle, no time at large
- US law reaches the same results through the LD non-apportionment rule, the implied duty not to hinder, and Spearin. See Prevention and time at large.
- Three layered federal time limits
- Contractual notice (10–21 days depending on the clause), a contractual claim-submission deadline (20–30 days), and the Contract Disputes Act's six-year statutory bar. See Claim clocks.
- Concurrency is a proof rule, not a substantive one
- Where delays are genuinely severable and the evidence permits clear apportionment, both parties recover pro rata, and in federal practice the contractor bears the burden of separating its own delay from the government's.
- No-damage-for-delay is the largest axis of state variation
- The same clause can be fully enforceable in Texas and wholly void in Ohio: eight states verified from statutory text, eight more reported secondary-only.
- The FAR is mid-overhaul
- The Revolutionary FAR Overhaul is mid-flight as of August 2026: agencies may be operating under class-deviation clause text that differs from acquisition.gov. Always read the clause as incorporated in the contract.
- No construction adjudication, anywhere
- Federal, state, public or private: the US has no statutory construction adjudication of the UK/Canada/ Australia kind. What partly fills the gap (arbitration, dispute review boards, some states' claim-resolution statutes) ends in non-binding relief, not a binding interim decision.
The taxonomy underneath every US delay claim
US practice sorts delay into four categories, and which one applies decides both the time and the money outcome:
| Category | Time | Money |
|---|---|---|
| Non-excusable | No | No |
| Excusable, non-compensable | Yes | No |
| Excusable, compensable | Yes | Yes |
| Concurrent | Usually yes | Usually no |
The federal standard is textual: an excusable delay must arise from causes beyond the control and without the fault or negligence of the contractor, unforeseeable, and affecting the critical path of performance. Private AIA practice asks a parallel but separately-worded question under Article 8. Neither regime forgives a claim that skips the schedule analysis. The single most common reason a US delay claim fails is that nobody proved the delay was actually on the critical path.
Three things that make US practice different
Critical-path proof is close to mandatory. Federal boards and the Court of Federal Claims generally will not accept a delay claim without CPM scheduling evidence, except for the simplest fact patterns. This is procedural in form but substantive in effect: a well-founded claim with no schedule analysis behind it routinely loses to a weaker claim that has one.
The concurrency bar is a rule of proof, not of substantive law. Where delays are genuinely severable and the evidence permits clear apportionment, apportionment is allowed and both sides recover pro rata for their own periods, but Sauer puts the burden of separating the contractor's own delay from the government's on the contractor, which runs against the common assumption. See Concurrent delay for the full burden allocation.
No-damage-for-delay is the single largest axis of intra-US variation. The same clause is fully enforceable in Texas and wholly void in Ohio. Any US delay analysis for private work that doesn't name the state has not scoped itself. See No-damage-for-delay clauses.
There is no US doctrine called the prevention principle, and "time at large" is not a US concept: the same commercial results are reached through the LD non-apportionment rule, the implied duty not to hinder, and Spearin's design warranty. See Prevention and time at large for all three routes.
Name the system before naming the rule
US delay practice runs on three separate systems, not one, and the first question in any US analysis is which one the project sits in: federal government contracting (FAR clauses, decided by the ASBCA, CBCA or Court of Federal Claims), state public work (the state's own procurement code plus its no-damage-for-delay and limitation law), and private work (AIA, ConsensusDocs, EJCDC, DBIA or a bespoke form, governed by whichever state's law the contract sits under). A rule that's true in one system routinely doesn't transfer to another: federal practice sits with LD apportionment, for instance, while state common law more often does not.
Concurrency defeats money but not necessarily time. Plead both. ECC International Constructors is the cleanest illustration: 205 days of concurrent contractor-side delay exceeded 119 days of government-caused design delay, so no compensable delay was awarded, yet liquidated damages were still remitted for the 119 excusable days on a separate footing. A federal claimant should plead the excusable-delay/LD-remission case in the alternative to the compensable-delay case, because the alternative survives concurrency even when the primary claim doesn't.
Where a US delay claim can die
A claim can fail at any of three separate layers, and they are cumulative, not alternatives: the contractual notice window (as short as 10 days under FAR, 21 days under AIA), a contractual claim-submission deadline that follows it, and, for federal work, the Contract Disputes Act's six-year statutory bar running from accrual, not from when the claim is finally quantified. See Claim clocks and Notice and time bars for the full structure, including the specific clause numbers and their extension or cost-cutoff mechanics.
Acceleration is a separate, parasitic claim
Where an owner refuses a warranted extension and insists on the original date, the resulting acceleration claim is a distinct cause of action from the EOT claim it depends on, and it fails automatically if the underlying EOT claim fails. US law recognizes constructive acceleration under a five-element test with a long federal pedigree. See Acceleration and constructive acceleration.
The US has no construction adjudication
Federal, state, public and private work alike, the US has no statutory construction adjudication scheme of the kind found in the UK, Canada, Australia or Singapore. This is one of the sharpest structural divergences from those systems and a large part of why US delay disputes run slower and later than their common-law counterparts elsewhere. What partly fills the gap (prompt payment legislation, dispute review boards, arbitration, and a small number of state claim-resolution statutes) ends in non-binding relief, most commonly mediation, rather than a binding interim decision on entitlement.
Where this stands as of August 2026
Federal contracting is mid-overhaul: the Revolutionary FAR Overhaul is rewriting large parts of the FAR, but the Contract Disputes Act's statutory architecture (the six-year bar, the $100,000 certification threshold, the CO final-decision and appeal process) survives unchanged because it is set by statute, not regulation. Agencies may be running on class-deviation clause text ahead of the formal rulemaking, so the practical rule is to read the clause as incorporated in the actual contract, not the current FAR text online.
Separately, and not to be confused with no-damage-for-delay reform, several states enacted retainage caps in 2025–26 that affect the cash cushion behind a delay dispute without touching the delay rules themselves.
Route map
- Claim clocks: every notice, submission and limitation deadline, federal and private, in sequence.
- Notice and time bars: the mechanics of AIA's 21-day Claim window and FAR's layered notice structure, and where each regime's traps sit.
- Prevention and time at large: why the English doctrine doesn't apply, and the three US equivalents that do.
- Concurrent delay: the clear-apportionment rule, the burden allocation, and a full worked example.
- No-damage-for-delay clauses: the state-by-state survey, verified and unverified.
- Acceleration and constructive acceleration: the five-element federal test and where the claim usually dies.
Fuentes y jurisprudencia
- ECC International Constructors, LLC ASBCA No. 59586 (18 April 2025)205 days of concurrent contractor-side delay exceeded 119 days of government-caused design delay, so no compensable delay was awarded, yet liquidated damages were remitted for 119 days on the excusable-delay footing, illustrating that concurrency defeats money but not necessarily time.Secondary source. Not independently re-verified this pass.Buscar en ASBCA →
- United States v Spearin 248 U.S. 132 (1918)Insertion of government-furnished specifications imported a warranty of their adequacy. On the facts, a delay case, because the contractor was not obliged to proceed at its peril after roughly 15 months of suspended work. The doctrinal bridge from "the drawings were wrong" to "the delay is compensable."Secondary source. Not independently re-verified this pass.Buscar en CourtListener →
- Sauer Inc. v Danzig 224 F.3d 1340 (Fed. Cir. 2000)Sets out the federal burden allocation on delay claims, including that a contractor asserting improperly assessed liquidated damages bears the burden of showing the extent of the excusable delay, and that a contractor must separate its own delay from the government's.Secondary source. Not independently re-verified this pass.Buscar en CourtListener →
- FAR 33.206, Contract Disputes Act statute of limitations FAR 33.206Sets the Contract Disputes Act's six-year limitation period, running from accrual under FAR 33.201.Clause number and date sourced from acquisition.gov. The Revolutionary FAR Overhaul is mid-flight as of August 2026, so a contract may carry deviated clause text that differs from the FAR as published. Always read the clause as incorporated in the contract.Buscar en acquisition.gov →
Sobre este material El contenido de la biblioteca es información general sobre la práctica de las reclamaciones de construcción, no asesoramiento jurídico. El derecho a reclamar, los plazos y el procedimiento se rigen por su propio contrato y por el derecho del lugar donde se ejecuta la obra. Revisado el 1 de septiembre de 2026 · Informar de una corrección