No-damage-for-delay clauses purport to assign all the risk of construction delay to the contractor. These clauses typically disclaim any owner responsibility to the contractor for delay or disruption, regardless of the cause. The contractor waives the right to damages or increased compensation for delay. The contractor's sole remedy is an extension of the performance period.

The one-sided nature of this risk allocation, particularly on publicly bid contracts in which the contractor has no ability to negotiate, has created a backlash. Some state legislatures have declared the clauses void under certain circumstances. Courts narrowly construe the clauses, limiting their enforceability. The highest court of New York has carved out four exceptions to the enforceability of no-damage-for-delay clauses. This recently excused a contractor from its failure to provide timely written notice of claim under the contract. In light of the contract's disclaimer, the claim for delay damages was extra-contractual.

Other cases reported this week involved a price ceiling on a time and materials contract and recovery of attorney fees after a wrongful contract termination. The price ceiling was compromised by the incorporation of the contractor's proposal, which seemed to make the cap contingent on an estimated quantity of work. And in the other case, attorney fees could be recovered under a federal statute only to the extent they were incurred in the appeal of the termination.