Defending Against Liquidated Damages in Texas: Excusable Delays and Notice Requirements
A construction project that finishes late may expose a contractor to liquidated damages. But a missed completion date does not automatically establish that the contractor is responsible for every day of delay.
The reason for the delay matters.
Owner-directed changes, delayed approvals, severe weather, site conditions, and other events may affect a project’s schedule. Whether those events provide additional time depends largely on the construction contract, the facts surrounding the delay, and the records created while the project was underway.
This is Part 2 of our three-part series on liquidated damages in Texas construction. If you have not read the first article, start with Liquidated Damages in Texas Construction Contracts: What They Are and How They Work.
Quick Answer: Can an Excusable Delay Affect Liquidated Damages?
Potentially.
A construction contract may identify events that qualify as excusable delays and permit the contractor to request additional time. If a time extension applies, it may change the date from which liquidated damages are measured or reduce the number of days in dispute.
The result is not automatic. The contract may require the contractor to provide timely notice, request an extension in a particular form, support the request with project records, and show that the event affected project completion.
Excusable Delay Starts with the Contract
There is no single definition of “excusable delay” that automatically applies to every Texas construction project. Depending on the agreement, potential events may include:
- Owner-directed changes or suspensions
- Delayed owner decisions, approvals, or access
- Certain unforeseen site conditions
- Unusually severe weather
- Specified labor, transportation, or supply disruptions
- Other events outside the contractor’s reasonable control
Other contracts allocate those risks differently or impose specific conditions before any extension is available. A familiar event label—such as weather delay or force majeure—does not replace the need to read the operative clause.
In Pepper Lawson Horizon International Group, LLC v. Texas Southern University, the construction contract identified excusable delays and tied certain schedule relief to their time impact on the project’s critical path. The Texas Supreme Court’s decision illustrates why the actual agreement matters; it does not create one universal definition for every project.
Owner-Caused Delays Can Change the Analysis
An owner may contribute to delay through late site access, delayed decisions, scope changes, revised design information, delayed owner-furnished materials, or interference with planned work.
A contractor generally needs more than a statement that the owner caused a problem. The project record should help answer four questions:
- What happened, and when did it begin and end?
- Which activities could not proceed as planned?
- What did the contract require the contractor to do?
- Was the contractual completion date adjusted or disputed?
Those details can help separate a delay event from the time period an owner later includes in a liquidated damages assessment.
Notice Requirements Can Affect Delay Relief
A contractor may have a legitimate reason for needing more time and still weaken its position if the contract’s notice and claim procedures are not followed.
Construction contracts often specify:
- Who must receive notice and how it must be delivered
- How quickly notice must be submitted
- What facts and anticipated effects must be described
- Whether supporting documentation must follow
- Whether a separate request for a time extension is required
Do not assume that discussing a delay during a project meeting or sending an informal email necessarily satisfies the contract. The required procedure, the parties’ communications, and the project circumstances all may matter.
Joe Tolbert has discussed the practical importance of these provisions in Protect Your Interests by Properly Following Provisions in Construction Contracts. When a delay begins, a useful first question is simple: What does the contract require us to do next?
Free Construction Contract Checklist
Strong Projects Start With Strong Contracts
When a project is delayed, the contract can shape what happens next. Know what your agreement should address before work begins. Subscribe to receive the free “7 Things Every Construction Contract Should Include” checklist, plus practical legal insights and tips for the Texas construction industry.
Subscribe & Get the ChecklistWhat Should Contractors Document?
Delay questions are usually easier to evaluate when records are created as events occur. Useful documents may include:
- Baseline schedules and regular schedule updates
- Daily reports and meeting minutes
- Change orders, RFIs, and submittal records
- Site-condition and weather records
- Notices, responses, and requests for extensions
- Correspondence with the owner and design team
- Records of mitigation, resequencing, or recovery efforts
The goal is not to create paperwork for its own sake. The records should help establish what happened, what work was affected, what the contract required, and how the event affected the schedule.
For weather-related events, see Navigating Weather-Related Delays in Texas Construction. A contractor may need to distinguish ordinary seasonal conditions from unusually severe weather and document actual project effects—not merely show that bad weather occurred.
Notice Is Important, but It Is Not the Last Question
Following the notice procedure may preserve a request for relief, but notice alone does not establish how many additional days are justified. The parties may still dispute whether the event moved the completion date, whether other delays overlapped, and which days should be included in an assessment.
Part 3 of this series will examine critical-path evidence, concurrent delay, and the records contractors should review when liquidated damages are actually assessed.
Disclaimer: This article provides general information and is not legal advice. Construction contracts and disputes are fact-specific. Reading this article does not create an attorney-client relationship.
