Implied Duty Not To Hinder Or Delay

Date: November 29, 2012  /  Author: John P. Ahlers, Matt Paxton  /  Categories: Construction News and Notes, Contracting, Construction Bidding, Settlements/Releases  /  Comments (0)  /  Back to Blog

This blog pertains to implied contract obligations, see previous article. Implied Obligations in Construction Contracts.

There is an implied duty of parties to a contract to cooperate with each other and to facilitate the performance of the work. The parties also have a duty not to interfere or delay the work of others:[1]

In every construction contract there is an implied term that the owner or person for whom the work is being done will not hinder or delay the contractor, and for such delays, the contractor may recover additional compensation.[2]

The same duty has been stated affirmatively as an implied obligation of both contract parties to cooperate with each other.[3]  The Washington Supreme Court has approved a rule that the "person for whom the work is contracted to be done... will in all ways facilitate the performance of the work" of the contractors.[4]  This general duty has been converted into specific contractor duties such as the duty to coordinate the work in a reasonable manner (the duty to schedule), the duty to provide access to the site, and the duty to adequately supervise the site.

  • Duty To Provide Adequate Supervision

A contract may imply a duty to provide sufficient supervisory personnel on the project. In Hill v. Polar Pantries, the court stated, "[i]t is true that there is no express stipulation to this effect but we think this obligation may be fairly implied. This was the interpretation which the parties themselves placed upon the contract."[5] For example, in United States ex rel. Heller Elec. Co. v. William Klingensmith, Inc.,[6] a general contractor subcontracted with a masonry company to work on a parking structure. The project was not completed until almost a year after the expected completion date. Each party blamed the other for delaying completion, but the district court found that the general contractor failed to provide sufficient supervisory personnel on the job, which resulted in the delayed completion. The U.S. Court of Appeals for the District of Columbia affirmed this aspect of the decision, stating "the prime contractor implicitly promises to provide such working conditions as may be necessary to allow its subcontractors to carry out its obligations under the contract."[7]

Conversely, excessive supervision or control of the contractor can constitute breach of duty not to hinder or delay. In SIPCO Services & Marine, Inc. v. United States,[8] a general contractor entered into a contract with NASA for the removal of coatings containing lead on the exterior of a wind tunnel at Ames Research Center. NASA became concerned about the details of the containment of the worksite because the coating becomes hazardous once removed. Thereafter, NASA initiated containment tests, requiring the general contractor to achieve 100-percent containment, which was not provided for in the contract or required by federal or state regulations. The result of the tests and new containment requirements resulted in delay. The U.S. Court of Federal Claims found that every contract with the government implies a duty not to prevent, hinder, or delay performance. "This implied obligation is breached 'when delay occurs because of excessive supervision or control over the contractor.'"[9] Therefore, the court held that there was viable claim for damages because NASA's excessive supervision imposed procedures that were beyond the scope of the contract.

  • Duty To Provide Access To The Site.  

    The duty to provide access to the site can arise as a result of certain contract clauses or as an independent duty.  In City of Portland ex rel. Donohue & Fleskes Corp. v. Hoffman Constr. Co.,[10] the Oregon Appellate Court agreed that while the subcontractor had some site maintenance obligations as specified by the subcontract, the general contractor was obligated to perform the non-specific site maintenance and it was not error for the lower court to instruct the jury as follows:

When a subcontract provides that the subcontractor is to perform and furnish work within a  fixed  period, the  prime contractor has a duty to afford the subcontractor a fair and reasonable opportunity to begin and complete the work within the time originally specified and to furnish the required materials, secure the rights of way, prepare the site and conditions as may be required by the subcontract so that the subcontractor, in exercise of reasonable diligence, may begin and finish the work within the prescribed period without being subjected to unreasonable costs or expenses on account of any default, delays or interference by the prime contractor.[11]

Similarly, in Allied Fire & Safety Equipment Co. v. Dick Enterprises, Inc.,[12] a contractor coordinated the work of its subcontractors such that it was forced to work in sporadic, untimely, and out of sequence. Although the subcontract expressly required the subcontractor to coordinate its work with other trades, the U.S. District Court for the Eastern District of Pennsylvania found:

[i]t is easy to imagine a situation where, for example, a contractor would coordinate a subcontractor's work to take place after all necessary items have been installed, yet could still hinder that subcontractor's work by, for example, preventing access to the work site.[13]

Therefore, the court held that the subcontractor could prove a set of facts to demonstrate that the contractor had an implied duty to provide the subcontractor with access to the worksite. 

  • Duty To Coordinate Multiple Prime Contractors/Subcontractors. 
  • Owner's Duty to Coordinate Multiple Contractors

In a project involving multiple contractors the duty to coordinate work is necessarily determined by the terms of the various contracts involved.[14]  In Broadway Maintenance Corporation v. Rutgers, the New Jersey Supreme Court found that:

If no one were designated to carry on the overall supervision, the reasonable implication would be that the owner would perform those duties.  In so doing, the owner impliedly assumes the duty to coordinate the various contractors to prevent unreasonable delays on the project.  That is a reasonable assumption because the contracting authority has the power to use its superior position and to invoke its contractual rights to compel cooperation among contractors.  The owner is impliedly obligated to act in good faith and to do that which it reasonably can to ensure that the other contractors adhere to the time schedules established for the project.  An owner's failure to take action in the face of unnecessary and unreasonable delays by one of the contracting parties would ordinarily evidence bad faith and constitute a breach of its implied duty to coordinate.[15]

(internal citations omitted). 

  • General Contractor's Duty to Coordinate Subcontractors.

Out of the general contractor's implied obligation to cooperate and not to hinder arises the general contractor's obligation to supervise its work and that of other subcontractors so they do not interfere with each other's work.  The general contractor owes an obligation to supervise its work and that of other subcontractors so that the subcontractors do not interfere with each other's work, and so that the work may be performed in a normal and logical sequence.[16]  This duty was breached in Blake Constr. Co., Inc. v. C.J. Coakley Co.[17]  The fireproofing subcontractor was forced to work with other trades in crowded work areas, had to shift from floor to floor on a haphazard basis, had to use scaffolding because interstitial floors were not in place, and the subcontractor's work was damaged because the contractor failed to provide weather protection for the subcontractor's work.  The court noted that a contractor's failure to follow its Critical Path Method (CPM), while not dispositive, is indicative of a general contractor's failure to sequence work reasonably. 

Irrespective of the implied duty, a general contractor may delegate its duty to schedule or coordinate to the subcontactors by well crafted subcontractor provisions. In L.K. Comstock & Co., Inc. v. United Engineers & Constructors,[18] a contractor entered into a contract with a subcontractor to install an electrical system. A provision of the contract provided that the general contractor was to furnish a copy of the "Project Critical Path Schedule, to the subcontractor, but the subcontractor was to "be responsible to plan and schedule all his work within the project schedule."[19] The United States Court of Appeals, applying Arizona law, held that there was no breach of an implied duty on the part of the general contractor to coordinate the activities of the subcontractors because of the presence of express contractual language in the subcontract which placed the duty of coordinating the subcontractor's activities on the subcontractor. Hence, the court held, even if such a duty to coordinate existed, it was nullified by the subcontract terms.[20]

A breach of the implied duty not to hinder or obstruct a subcontractor's performance also occurred in Quaker Empire Constr. Co. v. D.A. Collins Constr. Co.,[21] when the general contractor provided erroneous field measurements to a subcontractor and failed to perform timely preparation work necessary before the subcontractor could start its work.  Due to these delays, the subcontractor recovered the extra expenses incurred for working in winter weather. These expenses would not have been incurred absent the contractor's delays and the contractor's insistence to work during winter (to avoid owner assessed liquidated damages).

The bottom line is even when contracts are silent as to a party's obligation, the court may imply a common law duty such as the duty not to hinder or delay.

 ___________________________________________________________________

[1]  Jones Assoc. v. Eastside Properties, Inc., 41 Wn. App. 462,471,704 P.2d 681 (1985).

[2]  Warren Bros. Roads Co. v. United States, 105 F. Supp. 826 (1952); United States v. L.P. & JA. Smith, 256 U.S. 11, 65 L.Ed. 808, 41 S.Ct. 413 (1921); Hammond v. Beeson, 112 Mo. 190, 20 S.W. 474 (1982); Haley v. Brady, 17 Wn.2d 775, 137 P.2d 505, 146 A.L.R. 859 (1943); Ericksen v. Edmonds Sch. Dist., 13 Wn.2d 398, 125 P.2d 275 (1942)and cases cited therein. Bignold v. King County, 65 Wn.2d 817, 825 26, 399 P.2d 611 (1965); see also V. C. Edwards Contracting  Co., Inc. v. Port of Tacoma, 83 Wn.2d 7, 13, 514 P.2d 1381 (1973); Lester N. Johnson Co., Inc. v. City of Spokane.

[3] Cedar Lumber, Inc. v. United States, 5 Ct.CI. 539, 549 (1984); and Corbin on Contracts, §570.

[4]  Haley v. Brady, 17 Wn.2d 775, 789, 137 P.2d 505 (1943).

[5]  219 S.C. 263, 271, 64 S.E.2d 885 (1951).

[6]  670 F.2d 1227 (D.C. Cir. 1982).

[7]  Id at 1230.

[8]  41 Fed. Cl. 196, 218 (Fed. Cl. 1998).

[9]  Id. (citing Lathan Co., Inc., v. United States, 20 Cl.Ct. 122, 129 (1990)).

[10]  596 P.2d 1305 (1979).

[11]  Id. at 1312; Olympus Corp. v. United States, 98 F.3d 1314, 1318 (Fed. Cir. 1996) (finding that “interference by the government with a contractor's access to the work site may constitute a breach of the government's duty to cooperate…”).

[12] 886 F. Supp. 491 (E.D. Pa. 1995).

[13] Id. at 494.

[14] U.S. ex rel. Virginia Beach Mech. Services, Inc. v. SAMCO Const. Co., 39 F. Supp. 2d 661, 674 (E.D. Va. 1999).

[15] 90 N.J. 253, 266, 447 A.2d 906 (1982).

[16]  H.H  Robertson Co., Coupples Products Division v. V.S. Diclaro General Contractors, Inc., 950 F.2d 572 (8th

Cir. 1991); see, also, Bat Masonry Co., Inc. v. Pike-Paschen Joint Venture III, 842 F. Supp. 174, 178 (D. Md. 1993). 

[17]  431 A.2d 569 (D.C. 1981).

[18]  880 F.2d 219 (9th Cir. 1989).

[19]  Id. at 228.

[20]  Id. at 229-230.

[21]542 N.Y.S.2d 692 (1982).


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