Bidders on Massachusetts public work may no longer discount the effect of "no damage for delay provisions" in public contracts. Massachusetts' highest court has ruled in two recent cases that the state statute which appeared to protect contractors from the draconian effect of no damage provisions, provides no protection at all. The court has interpreted General Laws c.30, §39O in an extraordinarily narrow and technical manner so as to deny contractors any relief for delays not their fault except in the single circumstance where the public owner orders a written suspension of work. In light of this decision it will be a long time coming before any public owner, no matter what the circumstance requiring delay or suspension, will issue any written suspension order and voluntarily subject itself to delay damages.
This court ruling affects general and subcontractors alike. It shifts the risk and burden of even owner caused delay to general and subcontractors impacted by those delays. The statutory aim of assuring contractors equitable relief for unforeseen delays to encourage the lowest competitive price for public work is lost. Unless and until the legislature recognizes the inequity created by the court's ruling and amends G.L. c.30, §39O, a contractor may only protect itself against no damage for delay provisions by adjusting its bid price to reflect the increased risk transferred to contractors.
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