Are No Damages for Delay Provisions enforceable in Oregon? That depends (favorite lawyer's response, but true)...

In summary, these provisions are:

  • enforceable on private projects
  • unenforceable in public procurement prime contracts
  • probably enforceable (but TBD) in public procurement subcontracts

In essence, these provisions limit a contractor's remedy in the event of a delay to a time extension, but no dollars.

For almost 100 years, no damages for delay provisions were enforceable in Oregon in all construction contracts. See Manerud v. City of Eugene, 62 Or 196, 205, 124 P 662 (1912).

Then, in 2005, the Oregon legislature enacted ORS 279C.315 (previously ORS 279.063), making these provisions void as against public policy and unenforceable in public prime contracts.

But what about subcontracts on public procurment projects?

The law there is unsettled since the legislature was silent on subcontracts. Since general contractors typically include such provisions in their subcontracts, I'm sure it's just a matter of time before that case makes its way through the courts...