August 24, 2018
Author: Ryan W. Sternoff
Organization: Ahlers & Cressman PLLC
A. Types of Delay
A delay represents the time which some part of the construction project has been extended due to unanticipated circumstances. Delays generally fall into one of three categories: (1) the contractor bears the risk of both time and cost for delays that it causes or that are within its control (non-excusable, noncompensable); (2) the owner is responsible for both the time and cost effect of delays attributable to it, under its control, or for which it has agreed to assume responsibility (excusable and compensable); and (3) neither party is responsible to the other for those delays falling outside of the first two categories (these are termed “excusable” delays), i.e., those events beyond either party's control or assumption of responsibility (e.g., abnormal weather).
1. Non-Excusable Delays
Non-excusable (or inexcusable) delays are those caused by the fault or negligence of the contractor, or those delays for which the contractor assumes the risk. Nonexcusable delays are those for which the contractor is not-excused because they are caused by or attributable to the contractor or circumstances within the contractor’s control, or because the contractor has contractually agreed to assume the responsibility for them. Non-excusable delays include subcontractors’ delays, ordinary and foreseeable weather conditions, delays in obtaining materials, contractor financing problems, poor workmanship, contractor inefficiencies, and failure to mobilize. A contractor that encounters non-excusable delays is still obligated to perform by the original contract date. The contractor is not entitled to an adjustment to the contract completion date, because the contractor is responsible for the delay.
2. Excusable Delays
An excusable delay is one justifying an extension of time. These excuse the contractor from meeting the contract deadline. The contractor is protected from default termination, liquidated damages, and actual delay damages to the extent it has been excusably delayed. Excusable delays may also lead to recovery of additional compensation if the delay caused the contractor to constructively accelerate performance
Excusable delays are those for which the contractor is excused because they are caused by or attributable to the owner or circumstances within the owner’s control, or because the owner has contractually agreed to assume the responsibility for them. Whether a delay is viewed as excusable depends upon the language of the particular contract provision in question. The contractor has the burden of proving excusability. But the contractor is not entitled to relief upon the mere occurrence of an event which qualifies as an excusable delay. The contractor must show causation that the event caused delay to the overall completion of the contract and must establish the number of days of relief to which it is entitled. In other words, the delay must have affected the project’s critical path and extended the actual completion of the project.
Once the contractor shows that it was actually delayed by an excusable cause, the contractor must then establish the length of the time extension to which it is entitled. Generally, the duration of the time extension is governed by the extent to which the excusable cause of delay either increases the amount of time required for performance of the contract work as a whole, or defers the date by which the last of that work will be reasonably capable of completion.
If the delay is directly attributable to an act or omission of the owner (rather than merely to something of which the owner contractually assumed the risk – examples are, under appropriate circumstances, weather or third party delays), the contractor may also be entitled not only to a time extension but also to reimbursement for the increased costs caused by the delay, particularly if the contractor must accelerate performance to compensate for the delay. These are referred to by courts as “compensable delays” or claims for acceleration, as discussed further herein.
The standard delay clause found in federal contracts requires that the excusable delay arise from unforeseeable causes, and be beyond the control of the contractor. In addition, the delay cannot be caused by the contractor's fault or negligence. Whether a cause of delay is foreseeable is generally equated with knowledge or whether the contractor had reason to know of the foreseeable cause of delay prior to bidding. However, the mere possibility that an event might occur does not establish foreseeability. Foreseeability can be a high barrier to overcome.
b. Delays Beyond The Contractor’s Control
The second requirement for a delay to be deemed excusable under typical time extension clauses related to control: If a contractor cannot prevent an event from occurring, that event is beyond the contractor's control. The most difficult application of the \"beyond the control\" rule arises in cases where the owner contends that the contractor should have overcome the delay, for instance, where the owner insists that the contractor should have expected to take action to overcome strike delays.
Virtually all construction contracts recognize that critical path delays caused by unusually severe weather may be excusable. There is, however, no bright line test for determining when adverse weather becomes so abnormally severe that it gives rise to an excusable delay. Bad weather falling within the range of “normal” is deemed reasonably foreseeable and will not give rise to an excusable delay allowing a contract extension.1 Generally, adverse weather giving rise to an excusable delay is abnormal in comparison to previous weather patterns at the same location for the same time of year. Unusual weather severity is normally demonstrated through comparison of U.S. weather statistics for past periods in the area with those recorded during the period of performance.2 Even if the weather does not attain the requisite statistical level of severity, a contractor may succeed in its claim if it can prove that the impact on the work was unusually severe.3 Excusable weather delays generally are deemed to be non-compensable by traditional allocation of contract risk. Thus, the contractor is entitled to an extension of time to complete the construction and is also entitled to protection from liability for liquidated damages, but is not entitled to money damages for any of the additional costs attributable to the weather delay.4 The contractor must demonstrate that the construction delay was both excusable and compensable to recover damages.5 Thus, for a weather related delay to be compensable, it must be directly or indirectly caused by the owner. There are a number of legal theories under which adverse weather may form a basis of a contractor’s claim for compensable damages:
Adverse Weather Encountered Due to Prior Owner Caused Delays: Where the
contractor would have completed its work in good weather conditions, but due to
previous owner caused delays finds itself in adverse weather conditions, the costs
associated with working in the adverse conditions may be compensable. To
prevail under this circumstance, the contractor must show that the owner caused
delays were solely responsible for preventing the contractor from completing the
scheduled construction before the onset of inclement weather, and that the
contractor incurred the extra costs as a result.
Acceleration of Performance to Compensate for Excusable Weather Delays:
Where an owner refuses to grant a time extension for excusable weather delays,
and the contractor is effectively ordered to accelerate performance at increased
cost to avoid delaying the project’s completion date, the contractor may also
recover on a weather related claim. The contractor must prove that the weather
delay for which no extension of time was given actually would have impacted the
contract completion date but for the acceleration – or, at the very least, that the
delay in project completion was minimized by the contractor’s acceleration of the
Differing Site Conditions Uncovered by Weather Condition: A weather-related
claim may be compensable if abnormally severe weather combines or interacts
with a physical site characteristic that is either misrepresented in the contract
documents or is of such an unusual nature that it could not reasonably have been
anticipated by the contractor at the time of bid. Such a claim may be based either
on a differing site conditions clause or a common law theory of misrepresentation.
The contractor must prove that it reasonably relied upon conditions being
different from those actually encountered and that the combination of weather and
the physical site characteristic caused additional expense.
ii. Time Extensions
A contractor is not entitled to relief upon the mere occurrence of an event which
qualifies as an excusable delay. The contractor must show that the event caused delay to
the overall completion of the contract and must establish the number of days of relief to
which it is entitled (in other words, the delay must affect the project’s critical path, that
is, extend the actual completion of the project).6
Once the contractor shows that it was actually delayed by an excusable cause, it
still remains for the contractor to establish the length of that time extension to which it is
entitled. Generally, the duration of the time extension is governed by the extent to which
the excusable cause of delay either increases the amount of time required for performance
of the contract work as a whole, or defers the date by which the last of that work will be
reasonably capable of completion.7 The contractor has the burden of proving the
excusability of a delay.8
3. Compensable Delays
A contractor’s ability to recover increased costs resulting from such delays will be
determined by the cause of the delay, the contract provisions which bear either directly or
indirectly on the circumstances for which the adjustment is claimed, and the magnitude
and nature of the impact on the contractor. Both federal contracts and AIA contract
documents contain suspension provisions.9 Two types of compensable suspensions may
occur: (1) express suspensions, which are those ordered directly by the owner, and
(2) constructive suspensions, which are not expressly ordered but are caused by some act,
or failure to act, of the owner.
a. Express Suspension
Where the government expressly suspends the work and causes an “unreasonable delay” to the work or a portion of the work, that delay is compensable under the terms of the suspension of work clause.10
b. Constructive Suspension
Constructive suspensions occur when the work (either in its entirety or in part) is stopped without an express order by the owner, or owner’s representative, but the owner is nevertheless found to be responsible for the work stoppage. Examples of constructive suspensions are:
_ Delays Caused by Defective Drawings and Specifications Supplied by Owner or its Architect/Engineer.11
Delays resulting from design errors and omissions arise when the original design is incomplete, is not constructible, or otherwise needs to be revised in a manner which impacts the contract's costs and/or time. An owner's liability to the contractor for extra costs necessitated by design errors and omissions results from the implied warranty of adequacy and sufficiency of plans and specifications furnished to the contractor. This implied warranty is often referred to as the \"Spearin Doctrine\" and has been adopted in Washington in the case, City of Seattle v. Dyad Construction, 17 Wn. App. 501 (Wn. App. Div. I 1977.
_ Delay Caused by Differing Site Conditions
A subset of delay based on design errors and omissions, are claims for differing site conditions. Changes based upon differing site conditions arise from two basic scenarios: (1) unknown physical conditions at the site which differ materially from those indicated in the contract; or (2) unknown physical conditions at the site of an unusual nature which differ materially from those ordinarily encountered and generally recognized as inherent in the work of the character provided for in the contract.
Compensation for differing site conditions will depend on the terms of the contract and who assumed the risk of the differing site condition!
_ Delay Caused by Improper Site Preparation.12
_ Delay in Issuing Notice to Proceed.13
_ Delay in Availability of Site.
The issuance of the notice to proceed in the face of non-availability of the site will not relieve the government of its obligation to compensate the contractor.14
_ Delay Because of Interference with Contractor’s Work.
In every construction contract there is an implied term that the owner will not delay or hinder the contractor, and such delays entitle the contractor to extra compensation.15 Other acts giving rise to owner liability, based in whole or in part on the duty not to interfere with the contractor’s work, include:
_ Failure to Coordinate the Work of Multiple Prime Contractors.16
_ Suspension of Work by the Owner Absent Valid Contractual Authorization.17
_ Delays Caused by Wrongful Acts or Omissions of the Architect and/or Engineer.18
_ Delays Caused by Excessive Change Orders/Defective Drawings and Specifications.19
This may ultimately be ruled to result in a \"cardinal change\" which occurs when the nature and extent of the changes are so beyond the general scope of the contract that the contract is deemed to have been materially breached by the owner. When a cardinal change occurs, a contractor is not limited to remedies set forth in the contract and may recover under the doctrine of quantum meruit.
_ Delay in Providing Funding.20
_ Delay in Inspection of Work.21
B. No Damage for Delay Clauses
1. Washington’s “No Damages for Delay” Statute
Washington courts struggled with the no-pay-for-delay clauses in a number of decisions before the legislature enacted RCW 4.24.360 in 1979 before enacting RCW 4.24.360 in 1979, which provides as follows:
Any clause in a construction contract, as defined in RCW 4.24.370, which purports to waive, release, or extinguish the rights of a contractor, subcontractor, or supplier to damages or an equitable adjustment arising out of unreasonable delay in performance which delay is caused by the acts or omissions of the contractee or persons acting for the contractee is against public policy and is void and unenforceable.
This section shall not be construed to void any provision in a construction contract, as defined in RCW 4.24.370, which (1) requires notice of delays, (2) provides for arbitration or other procedure for settlement, or (3) provides for reasonable liquidated damages. RCW 4.24.360.
In Scoccolo Construction, Inc. v. City of Renton, 158 Wn.2d 506, 145 P.3d 371 (2006), the Washington the Supreme Court held that a clause in the City of Renton's contract which precluded compensation to the contractor for delays caused by a utility company was barred by the statute. In so doing, the court held that the contractual relationship with a utility, meant that the utility was \"acting for\" the owner when it delayed the project.
Washington courts have some leeway in interpreting the statutory phrase \"unreasonable delay,\" which may preclude recovery by the contractor for \"reasonable\" owner-caused delays. Court cases predating the statute defined reasonable owner caused \"delays\" as those delays within the contemplation of the parties.\" Thus, where parties to the contract provide for a remedy in the event of an owner-caused delay, that delay may be construed to be reasonable under RCW 4.24.360. When a condition arises which was expressly foreseen and provided for in the parties' contract the presumption is the parties intended the prescribed remedy as the sole remedy for the condition.
A number of School Districts in the general King County area utilize contracts with provisions specifying the amount of delay/impact damages in the event of ownercaused interference with the project. The parties simply \"agree\" that in the event of delays due to changes or differing conditions, the full and exclusive equitable adjustment for delays will be the amount of money set forth in the school district contract (generally a certain amount to be paid per day for delay impact damages). This provision does not extinguish the right to damages for delay, but instead guarantees an \"equitable adjustment\" according to an agreed-upon formula.
2. Is the Waiver of Consequential Damages in Conflict with Washington's No Damage for Delay Statute?
The AIA A201 waiver of consequential damages and RCW 4.24.360 appear to be mutually exclusive, since RCW 4.24.360 clearly invalidates construction clauses which preclude recovery in the event of an unreasonable delay -- if the event giving rise to the delay on a construction project utilizing the A201 form is unreasonable (outside the contemplation of the parties -- not expressly provided for in the parties' contract), the statute on its face invalidates the contractor's waiver -- allowing the contractor to recover for delay damages despite the mutual waiver clause. The statute may also invalidate the owner's waiver, the reservation of liquidated damages notwithstanding.
Perhaps, if the evidence showed the waiver was mutually negotiated, discussed and expressly provided for by the parties to the contract, the courts might hold that the condition giving rise to the delay was expressly foreseen -- the legal presumption would then be that the parties intended the prescribed remedy (of no damages for delay) as the sole remedy for the delay condition. What Washington courts may do when confronted with this conflict remains to be seen when the conflicting provisions come head to head in the courts.
The mutual waiver of consequential damages clause may be attacked on a number of other grounds:
Is the provision ambiguous - what are consequential damages? The term consequential damages does not have a defined meaning in the contract nor in commerce. If the term is ambiguous, it can be argued that a contract provision containing the term \"consequential damages\" cannot be enforced since there is no way of knowing what the parties meant by the term.
Additional issues that might be raised include: Is the mutual waiver of consequential damages subject to a bad faith exception? Does the waiver apply to subcontractors through the incorporation by reference provision?
C. Acceleration Claims
Acceleration occurs when the contractor performs its work at a faster rate than required by the original contract.22 Compensable acceleration occurs when the owner requires the contractor to complete construction as originally scheduled rather than within the extended time the contractor is entitled to as a result of excusable delays. Where a contractor accelerates its performance voluntarily for its own purposes, it will not receive additional compensation from the owner.23 Acceleration may be either directed or constructive.
1. Directed Acceleration
The elements of directed acceleration are:24
_ the contractor establishes that its breach of its performance deadline was excusable;
_ the contractor was entitled to a time extension;
_ the contractor requested a time extension from the owner;
_ the owner refused to grant a time extension and ordered the contractor to complete the work, including the changed work, by the original performance deadline;
_ the contractor incurred additional cost as a result of such acceleration; and
_ the contractor gave the owner or its representative proper and timely notice of its acceleration claim.
2. Constructive Acceleration
Even though an owner may not expressly order acceleration, statements or conduct to the effect that the original schedule should be maintained, despite the excusable delay, can equate to an affirmative directive. Such an implied order is called “constructive acceleration.” It has been held that a request to accelerate, as opposed to a directive, is sufficient to constitute an acceleration order.25 In situations in which the owner exerts a variety of pressures on the contractor, so as to deprive it of its bargained for time to complete the project, the courts can find an implied order to accelerate.26
3. Early Completion
Sometimes, a contractor will claim a constructive acceleration because it was planning an early completion date, and the owner has hindered and delayed this approach. From the contractor's point of view, when it completes its work within the agreed contract completion date, but later than it would have completed but for delays caused by the owner, the contractor's costs would have been lower and its profits higher. Thus, it follows that the increased cost and lost profits should be compensable as part of the contractor's delay damages. From the owner's perspective, on the other hand, the contractor should not be able to claim delay damages until the agreed contract time has been exceeded.
The fact that a contractor is able to complete the project on time or ahead of schedule, notwithstanding the complained-of delay, will not provide any defense to the owner against suspension of work or breach of implied duty claims. \"An owner may not prevent a contractor's early completion of his assignment with impunity.\" Based on the duty not to hinder or delay the contractor, Washington courts have recognized the right of a contractor to complete early.27 To prevail in its claim for early completion, the contractor must demonstrate that its planned schedule for early completion was both reasonable and attainable.
D. Concurrent Delay
Concurrent delay occurs when there are two or more independently-caused delays during the same time period. Courts determine the legal impact of concurrency by examining the responsibility for the concurrent delays and whether the parties are seeking compensation or a time extension. If a period of delay can be attributed simultaneously to the actions of two or more parties, they are said to be concurrent and the result is an excusable but perhaps not compensable delay.
When confronted with a concurrent delay situation on a construction project, Washington courts will likely apportion damages if there is an adequate basis for allocation of responsibility. One Washington case in a non-construction context examined the split of authority on the apportionment issue and came down in favor of apportionment where practicable. The Court favored apportionment, even though the actual damages of one of the parties would have been difficult to prove and the only basis for determining its damages was the liquidated damages clause of the contract.28
The preferred solution is to determine which event or entity is actually causing the delay and apportion it accordingly. It is error for a court to rule that neither party is liable for delay simply because there is concurrent delay for which each party is partly responsible.29 In allocating responsibility for delay, the trial court or jury may make reasonable approximations.30 In Klingensmith, Inc. v. United States,31 the contractor was delayed where the foundation design had been changed from footings to caissons. However, there may have been concurrent delay for other reasons within the control of the contractor. The court stated the apportionment rule in remanding for a determination of the cause of the delay:
The general rule is that “[w]here both parties contribute to the delay neither can recover damage[s], unless there is in the proof a clear apportionment of the delay and the expense attributable to each party.
Courts will deny recovery where the delays are concurrent and the contractor has not established its delay apart from that attributable to the Government. Therefore [the contractor] can only recover if it can establish that the Government delayed the work by requiring that the footings be changed to caissons and if it can prove how much of the delay was chargeable to the Government.32
The contractor bears the burden of proving the extent of the delays and of apportioning the damages.33 In a concurrent delay situation, Washington courts are likely to award damages based on an estimated allocation of fault even though the precise allocation of responsibility for the delay is not made.34
2. No Apportionment
Some cases hold that if the concurrent delay consists of delays attributable to both the owner and the contractor, neither can recover from the other. This is particularly true where the finder of fact cannot “determine a reasonable basis for such an apportionment” and therefore cannot attribute any responsibility.35
3. Relief from Liquidated Damages
Where the owner is unable to clearly distinguish the contractor’s responsibility for the delay from its own responsibility, the owner may not collect liquidated damages.36 The Superior Court of New Jersey stated the general rule in Buckley & Co. v. State;37 because neither the contractor nor the State could prove how much of the delay was attributed to the other party, neither was entitled to recover from the other the losses resulting from the concurrent delay:
The general rule appears to be that, in absence of an extension of time provision in the contract, liquidated damages will be denied in their entirety where the contractee [owner] is responsible for any delay, even though some or most of the delay is attributable to the contractor.38 Where the contract includes a provision for the grant of extensions of time, the authorities permit the contractee [owner] to recover liquidated damages, but only to the extent that the delay is not caused by the contractee
An older Washington Supreme Court case, Patnude v. Pettifer,40 tacitly acknowledges the rule that a party to a contract whose acts or omissions contribute to the delay generally cannot take advantage of the liquidated damage provision for those losses due to the breach. In Patnude, the court held that a prime contractor on a school project could not recover liquidated damages for delay from a plastering subcontractor, even though the plasterer’s performance was not completed until after the completion date called for by the subcontract. The prime contractor admitted that the subcontractor could not possibly have completed the project on time, given the late date on which the work was ready for the plasterer. Since the prime contractor’s site preparation contributed to the subcontractor’s delay, the prime contractor did not recover any liquidated damages for the delay.
Other courts have held that regardless of whether the contract provides for the granting of an extension of time, the owner is not entitled to rely on a liquidated damage provision if the owner caused all or any part of the delay.41 When delayed completion has been caused by the act of both the contractor and the owner (concurrent delay), liquidated damages can be assessed for portions of the delay that can be shown to have been caused by the contractor and not the owner.42 However, if the owner cannot separate the contractor-caused delays from the owner-caused delays, liquidated damages cannot be assessed.43
An owner's request for the contractor to accelerate construction to deliver the project earlier than contractually required can also have an impact on project costs. When a project's schedule is accelerated, project costs are likely to increase if the contractor is forced to incur overtime, inefficiency, trade stacking costs, or is forced to pay premiums to suppliers to deliver manufactured items with expedited lead times. Even when there is no change made to the contract time or schedule, acceleration can still occur if there have been changes to the project's scope, which make the work more difficult to complete in the original contract period. In these situations, contractors can claim entitlement to a change order for what is known as \"constructive acceleration.\" Constructive acceleration occurs when there are changes or additions to its scope of work which make the contractor's work more difficult and time consuming, yet no concurrent extension to the project schedule is offered by the owner. Under these circumstances, the contractor's impact costs should be paid as a change order.
E. WHO OWNS THE FLOAT?
Generally, only delays which extend the critical path and the contract completion date, justify time extensions. The critical path is the planned sequence of interrelated activity elements comprising a project; delay of an element on the critical path will affect the completion date. However, contractors often argue that a delay to a non-critical activity should also support a delay claim.
The difference between the time available for performance and the necessary performance time is called the \"total float.\" Float represents the amount of extra time potentially available for an activity if all preceding activities started as early as possible, and all subsequent activities start as late as possible. This definition presumes that the management of float is as important to the project completion as the management of critical activities. The issue of ownership of float may be rendered moot by the terms of the contractor's agreement with the owner. The first place to look when attempting to determine who is entitled to the benefit of the float is the contract. Where provisions addressing float are absent, several positions have been advanced by commentators in the area of construction scheduling and claims which should be considered in any dispute over the use of float time.
1. The Float Belongs to the Contractor
If the contractor makes a sequence of work critical by use of float time, and the owner causes a delay which may not have been critical but for the contractor's prior delay, the contractor would still be entitled to a time extension. The basis for this position is that time -- like labor, material, and equipment -- is a resource which the contractor must use in managing the project to the best of its ability.
2. The Float Belongs to the Party Who \"Gets to the Float First\"
Typically, no extensions are allowed until the float has been exhausted by the activity in question. If the owner delays a particular activity during a period when the float is available so that only five days of float remain and thereafter the contractor delays the activity for 60 days, the contractor is responsible for 55 days of delay to the project. Of course, if the contractor uses the float first and the owner then delays the activity to the point where it impacts the critical path and the project is delayed, the owner becomes responsible for the delays and the damages.
3. Float Belongs to Either Party as Long as it is Reasonably Utilized
This position is somewhat of a compromise between position 1 and position 2. An activity is allocated a percentage of the float available based on the individual activity's duration. If an activity is delayed beyond its allocated float, then a time extension may be justified to preserve the allocated float of other activities in the approved schedule.
1 District of Columbia v. Heman Ward, Inc., 261 A.2d 836 (D.C. App. 1970); Roundplace, Inc. v. United
States, 31 Fed. Cl. 749 (1994).
2 Appeal of Allied Contractors, Inc., IBCA No. 265, 62 BCA 3,501 (1962).
3 Appeal of R & R Construction, VABCA No. 1101, 74 2 BCA 10,857 (1974).
4 Timberland Paving & Constr. Co. v. United States, 18 Cl. Ct. 129 (1989).
5 Weaver Bailey Contractors, Inc. v. United States, 19 Cl. Ct. 474 (1990).
6 Essential Constr. Co., ASBCA 18491, 78-2 BCA 13,314 (1978).
7 Montgomery-Macri Co., IBCA 5972, 63 BCA 3,819 (1963), motion for reconsideration denied, 64 BCA 4,292 (1964).
8 Mil-Craft Mfg., Inc., ASBCA 19305, 74-2 BCA 10,840 (1974).
9 See, Corps of Engineers General Provision Article 17 (DAR 7-602.46) and AIA General Conditions A201 Article 14.3 (1987).
10 Donald M. Drake Co. v. United States, 439 F.2d 169 (Ct.Cl. 1971).
11 Nelse Mortenson & Co., Inc. v. Group Health Cooperative of Puget Sound, 17 Wn. App. 703, 723-25, 566 P.2d 560 (1977) aff’d 90 Wn.2d 843, 586 P.2d 469 (1978).
12 Byrne v. Bellingham Consol. Sch. Dist. #301, 7 Wn.2d 20, 28-29, 108 P.2d 791 (1941).
13 Abbett Elec. Corp. v. United States, 162 F.Supp. 772 (Ct.Cl. 1958).
14 T.C. Bateson Constr. Co., ASBCA 6028, 63 BCA 3,692 (1963); O. Zook Bros. Constr. v. State, 556 P.2d 911, 915-16 (Mont. 1976).
15 C.W. Bignold v. King County, 65 Wn.2d 817, 399 P.2d 611 (1965).
16 V.C. Edwards Contracting Co., Inc. v. Port of Tacoma, 83 Wn.2d 7, 13-14, 514 P.2d 1381 (1973).
17 Ericksen v. Edmonds Sch. Dist. #15, 13 Wn.2d 398, 408-10, 125 P.2d 275 (1942).
18 Id. at 408-410.
19 Nelse Mortenson & Co., Inc. v. Group Health Cooperative of Puget Sound, 17 Wn. App. 703, 721-22, 566 P.2d 560 (1977), aff’d, 90 Wn.2d 843, 586 P.2d 469 (1978).
20 S.A. Healy Co. v. United States, 576 F.2d 299 (Ct.Cl. 1978).
21 Maintenance Eng’s, ASBCA 17474, 74-2 BCA 10,760 (1974) (short work hours of the government inspector caused unreasonable delay).
22 Contracting & Material Co. v. City of Chicago, 314 N.E.2d 598, 604 (Ill. App. 1974), rev’d. on other grounds, 349 N.E.2d 389 (Ill. 1976).
23 Mobile Chem. Co. v. Blount Bros. Corp., 809 F.2d 1175 (5th Cir. 1987); McNutt Constr. Co., ENGBCA
No. 4724, 85-3 BCA 18,397 1985).
24 Norair Eng’g. Corp. v. United States, 666 F.2d 546, 548 (Ct.Cl. 1981).
25 Tombigee Constructors v. United States, 420 F.2d 1037 (Ct.Cl. 1970).
26 Norair Eng’g. Corp. v. United States, 666 F.2d 546 (Ct.Cl. 1981) (the owner requested the contractor to expedite the work and threatened assessment of liquidated delay damages); Continental Heller Corp., GSBCA Nos. 682 and 7140, 84-2 BCA 17,275 (1984) (belated time extension, owner’s “strong desire and concern for timely completion”, and possibility of assessment of liquidated delay damages contributed to finding that owner ordered acceleration); Pathman Constr. Co., ASBCA 14285, 71-1 BCA 8,905 (1971) (contracting officer impressed upon the contractor the urgent need for completion by a certain date and read the contract’s liquidated damages provision to the contractor at job site progress meeting).
27 Westland Const. Co. v. Chris Berg, Inc., 35 Wash. 2d 824, 841, 215 P.2d 683, 693 (1950).
28 Baldwin v. National Safe Depository Co., 40 Wn. App. 69, 697 P.2d 587 (1985), review denied, 104 Wn.2d 1002 (1985).
29 U.S. ex rel. Heller Elec. Co. v. William F. Klingensmith, Inc., 670 F.2d 1227 (D.C.Cir. 1982).
30 See Carter Elec. Co. v. Travelers Indemnity Co., 382 F.2d 567 (10th Cir. 1967).
31 731 F.2d 805 (Fed. Cir. 1984).
32 Id. at 809, citing Blinderman Constr. Co. v. United States, 695 F.2d 552, 559 (Fed. Cir. 1982), quoting Coath & Goss, Inc. v. United States, 101 Ct. Cl. 702, 714-715 (1944).
33 Lichter v. Mellon-Stuart Co., 305 F.2d 216 (3rd Cir. 1962); Pathman Constr. Co. v. Hi-Way Elect. Co.,
382 N.E.2d 453 (Ill. App. 1978).
34 Baldwin v. Nat’l Safe Depository Co., 40 Wn. App. 69, 697 P.2d 587 (1985), review denied, 104 Wn.2d 1002 (1985).
35 U.S. Indus., Inc. v. Blake Constr. Co., 671 F.2d 539 (D.C.Cir. 1982); Aerokits, Inc., ASBCA 12324, 68-2 BCA 7,088 (1968).
36 General Ins. Co. of America v. Commerce Hyatt House, 85 Cal.Rptr. 317, 325 (Cal. App. 1970); Morgan Co. v. Gaasland Co., 50 Wn.2d 864, 867, 308 P.2d 679 (1957).
37 356 A.2d 56 (N.J. 1975).
38 Citing Gogo v. Los Angeles County Flood Control Dist., 45 Cal. App. 2d 334, 114 P.2d 65 (1941); Nomellini Constr. Co. v. Dept. of Water Resources, 19 Cal. App. 3d 240, 96 Cal. Rptr. 682 (1971); Glassman Constr. Co. v. Maryland City Plaza, Inc., 371 F.Supp. 1154 (D. Md. 1974).
39 Buckley & Co. v. State, 356 A.2d 56 at 70; 5 Williston on Contracts, 765, 766 (3rd Ed. 1961).
40 135 Wash. 254, 237 Pac. 289 (1925).
41 Acme Process Equip. Co. v. United States, 374 F.2d 509, 535 (Ct. Cl. 1965).
42 Id.; see also Baldwin v. Nat’l Safe Depository Corp., 40 Wn. App. 69, 71-73, 697 P.2d 587 (1985), review denied, 104 Wn.2d 1002 (1985); J & J Elec. v. Gilbert H. Moen Co., 9 Wn. App. 954, 961, 516 P.2d 217 (1973), review denied, 83 Wn.2d 1008 (1974).
43 Baldwin, 40 Wn. App. at 71-73; J. & J. Elec., 9 Wn. App. at 961.