FHWA Response to Coronavirus Disruptions to On-Going Construction Projects

Below is FHWA’s response to AGC’s inquiry concerning project delays due to coronavirus circumstances. A discussion with your state DOT regarding its delay policies may provide more insight. Further guidance from FHWA may be forthcoming.

 

Q: What is FHWA’s position on project delays resulting from potential material shortages or quarantines of project locations due to the coronavirus?

 

A:  FHWA expects the States to be consistent with their policies and contract language relating to delays and material shortages.

Most State DOT standard specifications address time extensions and how material shortages may be considered under their contract terms.

 

Some states may grant excusable, non-compensable time extensions when a contractor experiences extraordinary delays in material delivery or project site quarantines.

While the attached file is now more than 10 years old, it shows that many states had policies for granting excusable non-compensable time extensions when unusual market conditions are present. 

 

 State DOT examples follow:

Minnesota Standard specification 1806.2

1806.2 TYPES OF DELAYS

A Excusable, Non-Compensable Delays

Excusable, non-compensable delays are delays that are not the Contractor’s or the Department’s fault or responsibility, and that could not have been foreseen by the Contractor. The Department will not compensate the Contractor for excusable, non-compensable delays.

Excusable, non-compensable delays include, but are not limited to:

(1) Delays due to fires, floods, tornadoes, lightning strikes, earthquakes, epidemics, or other cataclysmic phenomena of nature.

(2) Delays due to weather if the Contractor is entitled to a time extension for weather as specified in 1806.3, “Determination of Charges on Working Day Contracts,” and 1806.4, “Extension of Contract Time Due to Weather on Calendar Day and Completion Date Contracts.”

(3) Extraordinary delays in material deliveries the Contractor or its suppliers cannot foresee or avoid resulting from freight embargoes, government acts, or regional material shortages.

(4) Delays due to civil disturbances.

(5) Delays due to acts of the public enemy.

(6) Delays due to labor strikes that are beyond the Contractor’s, subcontractor’s, or supplier’s power to settle and are not caused by improper acts or omissions of the Contractor, subcontractor, or supplier. 

(7) Delays due to acts of the government or a political subdivision other than the Department.

(8) All other delays not the Contractor’s or Department’s fault or responsibility and which could not have been foreseen by the Contractor.

 

 

Kansas standard specifications (108.5c(5)) only approves non-compensable excusable delays for national material shortage defined as 

108.5(d)(5):

5) National Material Shortages. The Engineer will not charge working days under subsection 108.5c.(5)

if there is a national material shortage unless:

 the national material shortage was foreseeable at the time of bid; or

 the national material shortage does not prevent the Contractor from performing the CIOW

 

State Practices on Delay