Evolvement of Excusable Delay Clauses in Government Contracts since the COVID-19 Pandemic

Authors

Jung Hyun Lee, Roger Williams UniversityFollow
Yunping Liang, Concordia University, Montreal, Quebec, CanadaFollow
Seyed Mohammad Ehsan Tabatabaee, Concordia University, Montreal, Quebec, CanadaFollow
Bryce Riccitelli, Roger Williams UniversityFollow

ORCID IDs

Jung Hyun Lee https://orcid.org/0000-0001-7116-3665

Yunping Liang https://orcid.org/0000-0002-9626-5921

Document Type

Article

Date of this Version

2-2024

Citation

Journal of Legal Affairs and Dispute Resolution in Engineering and Construction 16:1
(February 2024), 04523053.

doi: 10.1061/JLADAH.LADR-1059

Comments

Copyright © 2023 American Society of Civil Engineers. Used by permission.

Abstract

Excusable delay clauses in government construction contracts, often considered boilerplate with minimal modifications, have increased in attention since the outbreak of COVID-19. Despite the studies enumerating triggering events of the clause in the background of the pandemic, it is necessary to capture insights into how the unprecedented event is systematically accommodated by contract languages. The overarching goal of this study is to identify changes in contract languages over the pre-and post-pandemic eras by state departments of transportation (DOTs), focusing on excusable delay clauses. This study conducts a content analysis and a comparative analysis of state DOT construction contract documents, including requests for proposals and agreements. Longitudinally, the study analyzes changes within a state DOT over the pre-and post-pandemic eras. Cross-sectionally, the study compares the similarities and differences in the changes across different state DOTs. The results show that many DOTs specify a list of events that trigger the excusable delay clauses in the post-pandemic era. The study also identifies example languages, such as quarantine restrictions and material escalations, that have been added in the post-pandemic era. This study contributes to understanding how excusable delay contract languages have changed pre- and post-COVID-19 and the events that trigger such clauses in government construction projects. The findings are anticipated to benefit practitioners, especially those in the US transportation infrastructure industry and other common law authorities, by benchmarking necessary contract clause changes about the pandemic and unprecedented future events alike.