Force Majeure in Construction Contracts: What Counts, What Doesn't, and What Relief It Actually Provides
Force majeure is a contract provision that excuses performance during events beyond a party's reasonable control. In construction contracts, FM typically includes natural disasters, war, strikes, government actions, and in contemporary contracts, pandemics. What FM actually does — time extension, cost relief, contract termination — depends on the specific language. And what qualifies as FM for a specific event depends on interpretation of the clause against the facts.
The COVID-19 pandemic brought force majeure into sharp focus for construction contractors, with disputes over whether COVID impacts qualified, what relief was available, and how to document and claim FM. The lessons from that experience inform how FM is being drafted and litigated now. This post covers what contractors need to understand about FM in construction.
Force majeure clauses typically enumerate qualifying events:
Common force majeure events
- Acts of God — hurricanes, floods, earthquakes, severe weather beyond normal
- War, terrorism, civil unrest
- Government actions — stop-work orders, emergency declarations, shutdowns
- Pandemic / epidemic
- Strikes and labor actions (sometimes excluded or limited)
- Fire and explosion not caused by party
- Embargo or trade restriction
- Unavailability of specific materials due to forces beyond party's control
Exact list varies by contract. Some contracts are broad and inclusive; others are specific and limited. Some include a catch-all ("other causes beyond the parties' reasonable control"); others only cover the enumerated list. Reading the specific language is essential.
FM doesn't cover everything unforeseen:
Typical exclusions from force majeure
- Normal weather — even difficult weather within expected range
- Material cost increases — market price fluctuations aren't FM
- Labor shortages generally (though specific labor events may qualify)
- Financial difficulties of a party
- Subcontractor failure — unless the sub's failure itself was FM
- Known risks the party assumed
- Party's own negligence or fault
The central concept is "beyond reasonable control." Cost increases for steel aren't beyond control in the contractual sense — they're market risk the contractor assumed in the bid. A hurricane hitting the site is beyond control — the contractor couldn't have prevented it.
FM provides specific relief, not just an excuse:
Force majeure relief options
- Time extension — most common relief; day-for-day or CPM-based
- Suspension of performance — obligations suspended during FM period
- Cost relief — less common; depends on specific contract
- Termination rights — if FM continues beyond specified period
- Notice of force majeure does not create automatic relief — contract procedure must be followed
Most FM clauses provide time extension without cost relief. This means the contractor gets more time to complete but absorbs the cost of the extended duration — extended overhead, idle labor, extended equipment rental. Some contracts provide cost relief for specific categories; most don't.
FM claims have notice requirements:
FM notice requirements
- Notice typically required within specific days of event
- Written notice to specified recipient
- Description of FM event and impact
- Estimate of delay or impact
- Mitigation efforts being taken
- Ongoing updates as situation develops
Missing the notice window can forfeit the FM claim. This is a recurring theme in construction disputes — the underlying claim may have merit, but procedural non-compliance eliminates it. FM events often create chaos that makes timely notice feel optional; it's not.
FM claimants have mitigation duties:
FM mitigation obligations
- Reasonable efforts to continue performance where possible
- Work around affected areas or activities
- Document mitigation efforts
- Resume performance promptly when FM ends
- Seek alternative suppliers, labor, or methods
- Reasonable cost of mitigation typically recoverable if contract allows
A contractor who simply stops work citing FM without attempting mitigation weakens their claim. A contractor who documented efforts to continue, showed what was possible and what wasn't, and resumed promptly when conditions allowed has stronger claim support.
Mitigation documentation is often the deciding factor in force majeure disputes. A contractor who can show "we tried these 5 things to continue working" has a stronger claim than one who simply says "we had to stop." The effort documentation is inexpensive at the time and decisive in later disputes.
The COVID-19 pandemic tested FM clauses extensively:
COVID-19 FM experience and lessons
- Whether pandemic qualifies depends on specific contract language
- Government shutdown orders typically qualify as FM (separately from pandemic itself)
- Workforce reductions from illness sometimes qualified
- Supply chain disruption from pandemic produced mixed results
- Contractors who documented impacts daily had stronger claims
- Many contracts now specifically include pandemic in FM definitions
The COVID experience has changed contract drafting. Contracts now typically address pandemic specifically, and the case law has developed on how impacts tie to FM. Contracts entered during COVID or after often have more detailed FM language than pre-COVID contracts.
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Concurrent Delay Analysis
FM delays can overlap with other delays:
FM and concurrent delays
- FM plus contractor delay — typically no time extension (contractor would have been delayed anyway)
- FM plus owner delay — time extension, potentially cost relief if owner-caused
- FM plus differing site condition — overlapping claims need careful analysis
- Float consumption by FM — who gets the float?
- Net impact analysis — what's the actual project delay?
Concurrent delay analysis requires detailed day-by-day analysis. Without good documentation, concurrent delay arguments fail on both sides. With documentation, the actual causation can be determined.
FM is one of several delay categories in construction contracts:
Delay category hierarchy
- Excusable, compensable delay — time and cost (owner-caused typically)
- Excusable, non-compensable delay — time but not cost (FM typically)
- Non-excusable delay — neither time nor cost (contractor-caused)
- Concurrent delay — complex analysis depending on causation
FM is usually excusable but non-compensable — contractor gets time, not cost recovery. Understanding this distinction prevents over-claiming (expecting cost recovery that the contract doesn't provide) and under-claiming (missing time extension that is available).
Supply chain disruption is a particular FM area:
Supply chain FM issues
- Material unavailability vs material cost increase — different treatment
- Specific material truly unavailable may qualify as FM
- Alternative materials analysis required as mitigation
- Documentation of supply chain effort
- Time for approved alternatives if original unavailable
- Subcontractor failure due to sub's supply issues — complex analysis
Supply chain claims require proof that the specific material was genuinely unavailable, not just expensive. A contractor claiming FM for steel cost increases when steel was still available has weak case; a contractor claiming FM for specific specialty equipment that manufacturer couldn't produce has stronger case.
FM clauses deserve drafting attention:
FM drafting considerations
- Specific event list vs broad language — balance clarity with inclusion
- Pandemic specifically included (now standard)
- Cost relief explicit if intended
- Termination rights if FM continues beyond specific period
- Notice procedure clear and practical
- Mitigation duties stated
- Concurrent delay treatment addressed
Boilerplate FM language often has gaps that produce disputes. Bespoke drafting for significant contracts addresses specific concerns. For standard work, updated boilerplate that addresses modern FM issues (pandemic, specific supply chain, cyber events) is preferable to legacy language.
Force majeure in construction contracts excuses performance for events beyond reasonable control — but "beyond reasonable control" has specific contractual meaning. Qualifying events are typically enumerated (with or without catch-all); relief is usually time extension without cost recovery; notice procedures are strict; mitigation obligations exist. COVID-19 stress-tested FM clauses and produced lessons that inform current drafting. Concurrent delays require careful analysis. FM is part of a broader delay category framework that contractors should understand in aggregate. Over-claiming FM (asserting it for events that don't qualify) damages credibility; under-claiming (missing legitimate FM opportunities through procedural noncompliance) leaves relief on the table. Disciplined FM analysis — know what the clause says, document events and impacts contemporaneously, provide timely notice, demonstrate mitigation — produces the outcomes the contract actually provides.
Written by
Jordan Patel
Compliance & Legal
Former corporate counsel specializing in construction contracts and tax compliance. Writes about the documentation layer — COIs, W-8/W-9, certified payroll, notice-to-owner deadlines — and the legal backbone behind audit-ready AP.
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