There Is No Prevention Principle in US Construction Law

The liquidated-damages non-apportionment rule

This is the closest US analogue, and it is the most powerful of the three. In a minority but significant group of states, if the owner is responsible for any portion of the delay and the contract contains no apportionment clause, the owner does not suffer a pro-rata reduction. It loses the entire LD entitlement. North Carolina states the rule squarely: liquidated damages are unenforceable if the party benefiting from them was itself responsible for a portion of the delay, unless the contract contains a clause providing for apportionment. Biemann & Rowell Co. v Donohoe Cos., 556 S.E.2d 1 (N.C. Ct. App. 2001).

There is a recognized trend away from the all-or-nothing rule, toward judicial apportionment of delay days where the evidence permits it. But where non-apportionment still governs, the drafting consequence is sharp: a contractor's most valuable defensive move is not attacking the LD rate as a penalty. It is proving one day of owner-caused critical-path delay. An owner in such a state must insist on an express apportionment clause, because AIA A201-2017 contains no apportionment provision. An unamended A201 in a non-apportionment state leaves the owner badly exposed.

These are two different mechanisms and should not be read as the same rule wearing two hats: state non-apportionment is common-law forfeiture triggered by any owner fault. Federal apportionment is a proportional remit that still depends on the contractor discharging its own proof burden.

The implied duty not to hinder or interfere

Every US construction contract carries an implied duty of good faith and fair dealing, and with it a duty not to hinder or interfere with the other party's performance. Breach converts an otherwise neutral delay into an owner-caused, compensable one. In Stormwater Plans, LLC, ASBCA 63284 [appeal number cross-check advised] / ASBCA 63900, 63901 (10 April 2025), a breach-of-the-implied-duty-not-to-hinder-or-interfere theory survived dismissal on allegations of design issues and approval delays, a live pleading route in federal practice, not a theoretical one.

Spearin, reframed as a delay case

United States v Spearin is usually cited for the implied warranty of design adequacy: the government's specifications for a sewer relocation carried a warranty that, if complied with, the sewer would be adequate. United States v Spearin, 248 U.S. 132, 137 (1918). But the facts underlying that holding are a delay case. After the relocated sewer failed and flooded the dry-dock site, work was suspended for roughly 15 months while Spearin declined to proceed until the Government accepted responsibility. The Court held Spearin was not obliged to restore the sewer and proceed at his peril, and that the Government's annulment of the contract was wrongful.

Where the owner furnishes design, defective or incomplete specifications are an owner-caused, compensable delay event. The contractor need only show it complied with the specifications and they were inadequate, not that the owner was negligent. That is the doctrinal bridge from "the drawings were wrong" to "the delay is compensable."

Spearin has also been applied to private contracts, which is why it functions as a third, independent route to the prevention result rather than a federal-only curiosity.

Spearin in design-build, and where it stops

Spearin survives in design-build, but it relocates: Balfour Beatty v GSA holds that bridging documents at only 30% completion can still qualify as design specifications carrying the warranty, and Sheffield Korte, certiorari denied 12 January 2026, further qualifies how Spearin applies once a design-builder takes on design responsibility itself. This was the most-litigated open question in US design-build practice. Both decisions now give it an answer.

The warranty has a real limit, though. Dugan & Meyers Construction Co. v Ohio Dept of Administrative Services refused to extend Spearin to plan-change delay and enforced a 10-day notice bar against the contractor. Its no-damage-for-delay holding is superseded by Ohio's later statutory ban (Ohio Rev. Code § 4113.62(C), see No-damage-for-delay clauses), but the Spearin limit itself stands: the design warranty is not a substitute for complying with the contract's own notice mechanics.

Active interference: the NDFD escape hatch

Where a no-damage-for-delay clause applies, the functional prevention argument becomes the active interference / bad faith exception, the most widely adopted NDFD exception across US jurisdictions. Active interference has been found in specific owner directives disrupting sequence, administrative mismanagement, an excessive volume of changes, denial of site access, failure to coordinate separate contractors, and, directly on point here, refusal to issue warranted time extensions. Port of Houston Authority v Zachry Construction Corp. (Tex.). The full state-by-state NDFD exception landscape, including the enforceability variation across public and private contracts, is covered on the no-damage-for-delay spoke rather than repeated here.

The federal-specific inversion: sovereign acts

FAR 52.249-10(b) lists acts of the Government in either its sovereign or contractual capacity as an excusable cause of delay. FAR 52.249-10(b). But the sovereign acts doctrine bars treating the Government-as-sovereign's general regulatory action as a breach by the Government-as-contractor. A tariff or a regulatory measure is therefore excusable but not compensable, the mirror image of a prevention analysis, where owner-caused delay is precisely what unlocks compensation rather than what forecloses it.

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