What if you came across dinosaur bones on the work site like they did on a project in Denver, Colorado? Would you get extra time to complete the work? What does the construction contract allow? Let’s play out that scenario.
You reach out to your local construction lawyer and inform him that your project has been delayed because you came across dinosaur bones. After he stops giggling about the situation, he asks for a copy of your contract. Or maybe, just maybe, he already has the contract because you asked him to review it before you signed it.
Your lawyer looks up the delay provision which states:
If Subcontractor is delayed at any time during the progress of the Work by any Excusable Delay Events, then Subcontractor may be entitled to an extension of additional time to the Schedule.
So, what’s an Excusable Delay? It’s defined as a Force Majeure Event. A Force Majeure Event includes:
- Riot or insurrection;
- Nuclear explosion;
- Terrorism; or
- Government declared emergency.
I don’t think the finding of dinosaur bones falls within any of those terms. This could be a problem for the contractor on this project. Will extra time be given? I would think so because of the governmental interest in preserving the fossils.
But, what if you came across an unidentified drainage pipe or structure? You would probably not get the same result. Clearly finding man made objects buried on a work site is not a force majeure. And, the contract likely has a Site Inspection provision through which you agreed that you fully inspected the site.
Take Away: Watch out for dinosaur bones on your work site. But more importantly, review your construction contracts with an eye toward what would happen if you found something unexpected that delayed the project. Better yet, discuss your construction contract with your construction lawyer before you sign it.