The Collapsing "No Damages for Delay" Clause in Florida Public Construction Contracts: A Call for Legislative Change

Authors

Alain Lecusay

First Page

425

Document Type

Comment

Abstract

The purpose of this comment is to provide a reasonable and persuasive argument in support of the proposition that Florida should abolish the draconian "No Damages for Delay" clause, as against public policy, in public construction contracts. In particular, this comment attempts to show a pervasive national trend favoring the clause's non-enforceability through myriad judicial exceptions and statutory restrictions. Part I is a primer on the public construction process. It introduces the reader to each of the facets that make up the construction process: design, bidding, award, and construction. Part II argues in favor of invalidating the NDFD clause through a brief discussion of equitable principles. It pits the principle of "freedom to contract" against the principle of "good faith and fair contracting." Part III presents an archaic NDFD clause. It shows how judicial exceptions and progressive legislation have severely weakened the clause beyond its point of elasticity. Finally, part IV presents a national survey on the eroding enforceability of the NDFD clause. This concluding section showcases what other states have done to invalidate the NDFD clause. It closes with an insightful look at the way in which the State of Washington invalidated the NDFD clause-in the hopes that Florida will soon follow its lead and adopt a similar statutory provision.

Recommended Citation

Alain Lecusay, The Collapsing "No Damages for Delay" Clause in Florida Public Construction Contracts: A Call for Legislative Change, 15 St. Thomas L. Rev. 425 (2002).
Available at: https://scholarship.stu.edu/stlr/vol15/iss2/9