/ 4 min read
Delays For the past several years, I have taught a course on Construction Documents in the Construction Management program at the University of Houston. Most of my students are undergraduates preparing to become project managers or superintendents. We begin with an overview of the documents that shape a construction transaction and how they interact to deliver a project. The throughline of the course is simple but vital: in contracts, every word matters.
This semester, to demonstrate the power and peril of definitions, I gave the class a two-part writing exercise. It started with a seemingly trivial task that turned out to be anything but: define a “sandwich” while excluding hot dogs.
The Sandwich Problem: Precision in Definitions
Students produced a range of definitions, some broad and some highly technical. A few would have swept in half the deli counter and the bakery next door; others were so narrow they excluded common-sense sandwiches. As we tested draft definitions against edge cases, the class quickly recognized how ambiguous terms invite absurd results. As one student wrote, a sandwich is “two or more slices off of a loaf of bread with anything in between.” By that logic, two sliced loaves with the University of Houston Cougar mascot in between might qualify. That absurdity is the point. Some students did better by articulating elements and limits. One student wrote: “Three different layers including two separate pieces of bread with any ingredient in between these two layers. It can be stacked as high as the number of ingredients the consumer wants.” This included sandwiches without including hot dogs. They seemed to enjoy the lesson and get the point. Definitions must be carefully crafted to be broad enough to capture what we need but not so broad as to include unwanted problems.
From Sandwiches to Schedules: Defining “Excused Delays”
We then applied the same discipline to a core construction concept: “excused delays.” Students took opposing roles of contractor or owner and drafted definitions accordingly. The contrast was instructive. On the narrow end, an owner-focused version limited excused delays to specifically enumerated events such as an officially declared hurricane or an unforeseen flood within a defined period that make work unsafe or threaten the project’s foundation. These definitions aim to confine schedule relief to truly extraordinary events and to protect against open-ended claims. On the more comprehensive side, students drafted multi-part definitions keyed to industry practice, causation, and mitigation. Common elements included events beyond the contractor’s reasonable control; diligence and industry-standard planning to avoid or mitigate impacts; exclusion of contractor-caused issues like poor sequencing or late procurement; and documentation and notice requirements. Enumerated excused events typically included owner-caused delays, directed changes materially affecting the critical path, unusually severe weather measured against historical norms, force majeure as truly extraordinary events, and legally mandated work stoppages. Many drafts allowed time, but not money, absent express agreement.
Why It Matters: Contracts as Seat Belts
I explain to students and clients that contracts are like seat belts. For example, I drive to work every day. What if I told you, “I don’t have seat belts in my car? They slow me down and are unnecessary most of the time. Houston Drivers are good people, and I’ve never had a wreck so seat belts just a waste of time.” That sounds crazy but I’ve often heard people in the construction industry say, “I’ve done this work for years without a problem. I don’t need a contract. Contracts and legal review slows me down and are unnecessary most of the time. Contractors are good people and I’ve never had a problem on a project so contracts just waste time.” As 2020 taught the industry, events can outstrip assumptions. Many agreements simply did not contemplate global shutdowns or supply chain shocks. When reality changed, vague or silent provisions shifted risk in ways no one intended. Undefined or casually defined terms invite conflict. Clear definitions channel expectation and reduce disputes.
Practical Takeaways for Construction Stakeholders
Well-drafted definitions are a risk-management tool. For owners, they can reduce liability exposure, ensure schedule changes align with impacts, and require prompt, substantiated notice. For contractors and subcontractors, they clarify and preserve rights and remedies and the process to claim such relief. For all parties, they create a shared language that can be administered in real time rather than litigated after the fact. As you review your templates for the coming year, consider whether key terms, especially “excused delays,” force majeure, critical path, unusually severe weather, changes, notice, and documentation, are defined with enough specificity to accomplish your goals. Ask whether the definitions would have functioned in 2020, whether they are anchored to objective data where possible, and whether they align remedies to the risk. A sloppy definition may yield a laughable sandwich. In a construction contract, it can yield expensive uncertainty. In both cases, words matter. Write them to work.