The three buckets, and why they matter

Delays are usually sorted by two questions: was the delay the subcontractor's fault, and who should carry the cost? Answer those and almost every delay lands in one of three buckets, with concurrent delay sitting across the lines:

  • Excusable and compensable: not your fault, and the other side carries the cost. You may be entitled to both an extension of time and your delay costs.
  • Excusable but not compensable: not your fault, but nobody pays. You may get the time, but not the money.
  • Non-excusable: your delay, your problem. No extra time and no costs, and you may be exposed to liquidated damages.

Excusable and compensable: time and money

These are delays caused by the principal or head contractor, or by something the contract puts on their side of the ledger: late access to the site, late design or information, a direction to stop work, or a variation that pushes your program. Because the other party caused it, you may be entitled to an extension of time (which protects you from liquidated damages) and to recover your delay costs, typically standing labour and idle plant.

This is the bucket where your money lives, so it's the one where weak records hurt most. If you can't show the delay was caused by the other side, and you can't put a number on the cost, a compensable delay quietly becomes a time-only one.

Excusable but not compensable: time only

Some delays aren't your fault but aren't the other side's fault either. Unusually severe weather, certain industrial action, and other 'neutral' events often fall here. Many Australian contracts treat these as time-only: you may get an extension of time so you're not hit with liquidated damages, but the contract may not give you delay costs. Some go further with a 'no damage for delay' clause that limits cost recovery: exactly the kind of wording worth reading closely before you sign.

The practical takeaway: still notify, and still record it. An unclaimed extension of time can be the thing that saves you from liquidated damages even when there's no cheque attached to it.

Non-excusable: neither time nor money

A non-excusable delay is one the contract puts on you: your resourcing, your sequencing, or your own supplier falling behind. There's no extra time and no cost recovery, and you may be liable for liquidated damages for the days you ran over. Records still matter here, just defensively: good site records help you show which days were genuinely yours and which weren't, so you don't end up wearing delays that belonged to someone else.

Concurrent delay: the grey zone

Concurrent delay is where two delays overlap: say a week of genuine bad weather at the same time as your own crew being short. It's one of the most argued areas in delay claims because the time and the money can be treated differently. As a general rule, where an excusable and a non-excusable delay run at the same time, you may still get the extension of time but not the delay costs, though the exact treatment depends heavily on your contract and the facts.

That's why day-by-day records matter so much. If your dates are vague, the other side can label the whole period as concurrent and knock out your cost claim. If your records pin down what caused delay on each day, you're in a far stronger position to separate the periods.

The classification is really a records problem

Notice the pattern: which bucket a delay lands in decides what you can claim, but your records decide which bucket you can prove. A delay might genuinely be excusable and compensable, but if you can't evidence cause, timing and cost, it won't be treated that way. It's worth knowing the delay records every subcontractor should keep. For each significant delay, aim to capture:

  • Cause: what actually stopped or slowed the work, in plain terms, with photos and any direction, email or instruction from the principal or head contractor.
  • Timing: the dates and, where you can, the hours; when the delay started, when it ended, and what work it hit.
  • Effect on program: which activities were pushed, and whether the critical path moved.
  • Cost: labour standing by, plant sitting idle, and any extra costs, recorded as they happen rather than reconstructed months later.

A quick checklist before you claim

  1. Can you name the cause and point to who was responsible for it?
  2. Do your dates line up with your site diary, dockets and photos?
  3. Have you separated your own delays from the other side's?
  4. Have you notified within the time limit your contract sets?
  5. Have you put a number on the standby and idle-plant costs?

If you're not sure whether a delay is ready to claim, our free EOT claim readiness checker walks you through the gaps in a few minutes.

You don't need to win the legal argument on site. That comes later, and often it's someone else's job. While the delay is live, your job is to record it clearly enough that the classification is obvious when the claim is put together. Get that right and an excusable, compensable delay stays excusable and compensable all the way to the payment.