By Janeia Brounson
If the last few years have taught us anything, it’s to expect the unexpected — whether it’s a pandemic, a labor strike, or extreme weather shutting down your job site.
While you can’t plan for every disruption, you can protect yourself. One key tool? A well-drafted force majeure clause.
Think of it as your contract’s way of saying, “sometimes life gets in the way.”
A force majeure clause excuses your performance when something outside your reasonable control prevents you from meeting your obligations. It sounds straightforward, but the details matter.
These clauses often list events like:
- Natural Disasters (floods, fires, earthquakes)
- War
- Terrorism
- Labor Disputes
- Government Action
The problem? Some clauses are too narrow. If the contract doesn’t specifically mention the type of event you’re dealing with, you might not get any relief — even when the situation is clearly out of your hands.
When reviewing or negotiating a force majeure clause, make sure it’s broad enough to cover the realities of your work. Consider including things like:
- Delivery Disruptions
- Loss of Site Access
- Utility Failures
- Inaction by the Customer or Their Consultants
These are all common, real-world issues for control system integrators — and they should be addressed up front.
So what happens when a force majeure event actually occurs? What are you entitled to — just extra time, or also extra money?
That depends on how your contract defines and handles different types of delay.
Schedule Relief
This means you’re given more time to complete the work. It’s typically tied to excusable delays — events that excuse late performance but don’t come with compensation. You should receive an extension equal to the length of the delay, plus a reasonable recovery buffer to get things back on track.
Price Relief
This is about recovering your added costs — things like storage fees or idle labor. Price relief is usually tied to compensable delays, where you’re entitled to both time and money. These delays often stem from:
- Prolonged Disruptions
- Unknown Site Conditions
- Actions (or inactions) by the Customer or Their Team
Key Distinctions
Understanding how delay types and relief options connect is critical. Here’s the breakdown:
- Excusable delays: You get time, but no money. Think natural disasters or major storms.
- Compensable delays: You get both time and money. These are often caused by the customer or their consultants.
- Non-excusable delays: You’re on the hook for everything. These include delays due to your own performance issues.
If your contract doesn’t clearly define these categories — or if they’re applied inconsistently — you could end up absorbing costs and delays that aren’t your responsibility.
A force majeure clause might feel like boilerplate, but when things go sideways, it can make all the difference.
Review it carefully, negotiate when needed, and make sure you’re covered — because you can’t predict the next disruption, but you can be ready for it.
Janeia Brounson is an attorney with Faegre Drinker, counsel to the CSIA and many of its members. She can be reached at Janeia.Brounson@faegredrinker.com. For more information about the CSIA Legal Plan for members, see https://www.faegredrinker.com/en/areas/the-csia-legal-plan.
Photo credit: Photo by Scott Graham on Unsplash
