NDFD

Question 1

Are NDFD Enforeable?

Answer 1

No damages for delay (NDFD) clauses are enforceable despite the unfairness of them
unless an exception is established.

Question 2

Common Law Exceptions

Answer 2

when the delay: (1) was not intended or contemplated by the parties to be within the purview of the provision; (2) resulted from fraud, misrepresentation, or other bad faith on the part of one seeking the benefit of the provision; (3) has extended for such an unreasonable length of time that the party delayed would have been justified in abandoning the contract; or (4) is not within the specifically enumerated delays to which the clause applies; (5) an active inference with the contractor or
wrongful conduct such as arbitrary or capricious acts, willful or unreasoning actions, without due consideration and in disregard of the rights of other parties.

Question 3

Zachry Holding

Answer 3

The Court rejected the Port’s arguments on public policy grounds, holding that a NDFD clause excusing the type of conduct the jury found the Port engaged in unenforceable. Also recognized the 5 common law exceptions.

Also, the Court rejected pre‐release type clauses exempting an owner from contractual liability for harm
caused by intentional or reckless acts, stating that any other conclusion would incentivize wrongful conduct and damage contractual relations.

Question 4

Zachry Holding 2

Answer 4

Zachry also established that delay damages are recoverable as part of the
“balance owed” in various waiver of governmental immunity statutes, even if a
contract does not provide for such recovery.