Handling Delay Claims When the Employer Is Silent or Non-responsive
Executive Summary
In many construction projects, Contractors face a recurring challenge: Employers do not respond to delay notices, extension of time (EOT) requests, or claims. Silence does not mean acceptance, and it certainly does not protect the Contractor’s rights. This article explains how non-responsiveness affects contractual entitlements, what documentation is critical, and the practical steps Contractors must take to protect themselves. It also outlines strategic actions when the Employer remains unresponsive, ensuring that Contractors maintain their rights to time and cost compensation.
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In today’s construction environment, delays are almost inevitable, whether due to variations, site access issues, late approvals, or unforeseen conditions. Most contracts, including FIDIC, NEC, and ENAA forms, require Contractors to submit notices and detailed delay claims within strict timelines.
But what happens when the Employer does not reply?
In many cases, the Employer’s silence becomes a severe risk for the Contractor, especially when timelines continue, LD exposure increases, and the project team assumes “no reply means approval.” Unfortunately, that assumption is wrong.
Below is a practitioner-focused guide to managing delay claims when the Employer remains silent or unresponsive.
- Silence Does Not Equal Acceptance
Under most standard forms of contract, the Employer’s Engineer or Representative is obligated to respond within a reasonable time. However:
- Silence does not mean the Employer agrees.
- Silence does not grant automatic EOT.
- Silence does not protect against Liquidated Damages.
Contractors who rely on an Employer’s non-response often lose their entitlement later, especially in arbitration where tribunals focus on evidence, not assumptions.
- Consequences of Employer Non-responsiveness
When delay notices and claims receive no reply, Contractors face:
a. Growing LD Exposure
EOT claims remain unapproved, causing the Contractor to appear in delay, even when not at fault.
b. Cash Flow Risks
Unresolved variations or prolongation claims accumulate without payment.
c. Loss of Evidence
If the Contractor stops documenting delays because the Employer never answers, the claim becomes weak.
d. Strategic Silence by Employers
Some Employers deliberately remain silent to avoid early concessions or to strengthen their position later. - Contractor Actions When Employer Is Silent
Silence is a risk but it does not stop the Contractor from strengthening their claim. Below are the key actions:
Step 1: Continue Issuing Notices Without Failure
Even if the Employer never responds:
- Send timely delay notices under the contract.
- Follow with detailed EOT submissions.
- Reference contract clauses and attach evidence.
Arbitration tribunals value consistent documentation more than any other single factor.
Step 2: Maintain Comprehensive Contemporaneous Records
Consistent record-keeping becomes your strongest weapon when the Employer remains silent.
Key documents include:
- Daily progress reports
- Site diaries
- Correspondence logs
- Material delivery reports
- Meeting minutes
- Updated programme analyses
- Photographic evidence
In non-responsive environments, records win claims.
Step 3: Send Follow-Up Correspondence Referencing Contractual Rights
A structured follow-up cycle helps establish a clear trail:
- Reminder 1 (after 7–14 days)
- Reminder 2 (formal, referencing clause obligations)
- Reminder 3 (notification of potential dispute if no response)
This demonstrates that the Contractor acted diligently and professionally.
Step 4: Invoke Contractual Escalation Mechanisms
Most contracts allow escalation such as:
- Referral to Engineer/Independent Engineer
- Dispute Adjudication/Avoidance Board (DAB/DAAB)
- Senior management meetings
- Early warning meetings (under NEC formats)
Escalation is not aggression—it is contract compliance.
Step 5: Protect Position Through “Deemed Approval” Clauses (Where Applicable)
Some contracts contain provisions where:
- Failure to respond within a specified period
- Means the claim is deemed accepted
Examples include certain NEC, government tenders, and bespoke EPC contracts.
Where such clauses exist, Contractors must reference them in reminders.
Step 6: Prepare for a Dispute Before It Starts
If silence persists for months:
- Start preparing delay analysis
- Gather correspondence bundles
- Extract critical-path programme impacts
- Conduct an internal pre-arbitration assessment
Silence often indicates that arbitration may become inevitable.
- Critical Delay Analysis Techniques for Silent Employers
When Employers avoid engagement, disputes often focus on the quality of the Contractor’s analysis.
Preferred methodologies include:
- Time Impact Analysis (TIA)
- Windows Analysis
- As-Planned vs As-Built (when records are complete)
- Collapsed As-Built (only when necessary)
Your delay analysis becomes the backbone of your claim in arbitration.
- When Silence Becomes a Dispute
A non-responsive Employer triggers the contractual dispute process. Common triggers include:
- No reply to EOT claims
- No approval of variations
- Non-payment for prolongation costs
- Rejection of revised programme by silence
- LDs imposed despite pending EOT claims
In such cases, Contractors must activate the dispute resolution clause, not as aggression, but as protection of contractual rights.
Conclusion
An Employer’s silence can be more dangerous than an explicit rejection. It creates uncertainty, delays decision-making, and exposes the Contractor to financial and time-related risks. However, with disciplined documentation, consistent notices, structured follow-ups, and early expert involvement, Contractors can protect their entitlements and avoid losing claims due to inaction.
At Conslex Contract Solutions LLC, we help Contractors manage delay claims, document their entitlements, and navigate non-responsive Employers, ensuring that silence never becomes a reason for losing your rights. Contact us at info@conslex.com.