Construction Delay Claims in Texas: Types, Notice Requirements, and How to Protect Your Schedule
Texas commercial construction projects—or commercial construction projects anywhere—almost never go exactly to plan, but how you handle delay can decide whether you get compensated or end up eating the cost. This post walks through the main types of delay claims under Texas law, key notice requirements, and practical steps to protect both your schedule and your bottom line.
1. What is a construction delay claim?
A construction delay claim is a request for extra time, extra money, or both, due to events that push the project completion date beyond the agreed schedule. Delay claims often arise from weather, design changes, late approvals, differing site conditions, labor or material shortages, or coordination failures between project participants. In Texas and elsewhere, the starting point is almost always the written contract: your rights and remedies are defined by the scheduling, notice, and change-order clauses you agreed to at the outset.
2. The main types of delay (excusable, compensable, and non-compensable)
Most delay analysis breaks into three buckets:
Excusable, compensable delay: Events outside the contractor’s control that the owner is responsible for (late design decisions, owner-directed changes, late payment, access restrictions). These usually support both additional time and additional money.
Excusable, non-compensable delay: Events outside the control of both parties (force majeure events like unusually severe weather, certain utility issues, or strikes) that entitle the contractor to more time, but not money.
Non-excusable delay: Events caused by the contractor or its subs (poor scheduling, manpower shortages, late submittals). These can expose the contractor to liquidated damages or delay damages, rather than a recoverable claim.
Contract language often narrows or expands these categories; “no damages for delay” clauses and force majeure provisions are especially important to review.
3. Critical path and why it matters
In most Texas commercial projects, the key question often is whether the event impacted the critical path — the sequence of activities that determines the project completion date. If a problem affects only non‑critical path work, you may have disruption but not a compensable “delay” under the contract. Owners, bond companies, and insurers often look for a schedule analysis (time-impact analysis, impacted-as-planned, or window analysis) that ties each claimed delay event to actual critical path slippage. If your project doesn’t have a credible baseline schedule and contemporaneous updates, it is much harder to prove that a delay was critical and excusable.
4. Typical notice requirements in Texas construction contracts
Most Texas construction contracts require prompt written notice of delay as a condition to any extension of time or change order. Common formulations require:
Notice within a short window (often 7–14 days) after the contractor first recognizes the delay event.
A description of the cause, anticipated impact, and steps being taken to mitigate.
Follow‑up submissions with schedule updates and cost backup.
Courts in Texas (and construction arbitrators) routinely enforce these notice provisions, particularly on sophisticated commercial and public projects. Failure to give timely notice can turn what would have been an excusable, compensable delay into a non‑recoverable issue, or even a breach if the contractor misses the completion date without formally requesting an extension.
5. “No damages for delay” and other risk-shifting clauses
Many Texas owners and upstream contractors include “no damages for delay” clauses that limit the contractor’s remedy for certain delays to time extensions only. Some of these clauses are drafted broadly enough to purport to bar recovery even when the owner is at fault. Texas courts and arbitrators will generally enforce clear risk‑allocation language, but they may recognize exceptions for active interference, fraud, bad faith, or delays so extreme they amount to abandonment. The specific wording matters; even where a no‑damages-for-delay clause is enforceable, it usually does not bar recovery for extra work outside the original scope (which should be handled through change orders rather than delay claims).
6. Key Texas-specific considerations
Texas projects are often subject to additional contractual and statutory regimes that intersect with delay claims. Public projects may incorporate TxDOT or local agency specifications that add their own notice and scheduling rules. Pay‑when‑paid or pay‑if‑paid clauses can complicate pass‑through of delay-related costs down the subcontract chain. On some projects, liquidated damages provisions set a daily rate for late completion, while early-completion incentives or bonuses may be at stake if delays are not properly documented and attributed. Because Texas allows parties broad freedom of contract, these project-specific terms frequently control the outcome of delay disputes.
7. Practical steps to protect your delay claim
To position yourself for a successful delay claim — or a strong defense — treat documentation as part of the work. Consider the following:
Maintain a credible baseline and regular updates. Keep your schedule current and preserve snapshots showing how events changed the critical path.
Give timely, written notice. Use clear, contract‑referencing letters or emails that state the cause, expected impact, and whether you seek time, money, or both.
Track cause and effect in real time. Keep daily reports, photos, correspondence, and meeting minutes that link specific events to specific activities and dates.
Segregate delay and disruption costs. Set up cost codes for overtime, acceleration, standby, and re-sequencing so you can show actual cost impact later.
Mitigate where reasonable. Many contracts require reasonable mitigation; proposing alternatives and documenting the owner’s response can strengthen your position.
8. Defending against delay claims (owners and upstream contractors)
Owners and upstream contractors should assume that any significant delay will lead to claims and plan accordingly. That means enforcing schedule-update requirements, insisting on timely notice, and pushing for contemporaneous documentation rather than surprises at project closeout. When a claim surfaces, scrutinize whether the alleged delay truly impacted the critical path, whether other concurrent delays exist, and whether the contractor complied with notice and change-order procedures. A well-drafted contract, consistently enforced, provides leverage in negotiations and can narrow the dispute to genuine, well-documented issues rather than open-ended complaints about “delays.”
9. When to bring in construction counsel
High‑dollar delay claims and disputes over liquidated damages, acceleration costs, or termination often have life‑or‑death consequences for Texas contractors, owners, and developers. Counsel experienced in Texas construction law can help interpret complex scheduling and risk‑allocation provisions, evaluate whether “no damages for delay” clauses are likely to be enforced, and frame delay and disruption claims in a way that aligns with how arbitrators, judges, and mediators actually view these issues. Involving counsel early — when notice letters and change orders are still being drafted — can have a significant impact; counsel can help by preserving claims, focusing negotiations, and reducing the risk of an expensive, schedule‑busting dispute at the end of the job.
Facing construction delay issues? Contact Elkhoury Law today.
