From persistent supply chain disruptions to severe weather events, 2024 brought a fresh wave of construction delays across Virginia. While many of these challenges may feel familiar, they’ve pushed one particular contract clause into the spotlight again: force majeure.

The start of COVID caused an uptick in both disputes and preventative consultations centered around this often-overlooked provision. The legal landscape surrounding force majeure is evolving, and contractors, developers, and owners must adapt their contracts accordingly to minimize risk and protect their rights.

This blog explores how Virginia courts are interpreting force majeure clauses, what construction professionals should take away from recent case law, and how to revise your construction contracts this year.

What Is Force Majeure—and Why Does It Matter Now?

Force majeure provisions are designed to excuse a party’s performance when extraordinary and unforeseen events occur—events beyond their control that make fulfilling a contract impossible or impractical. These provisions typically reference acts of God, labor strikes, war, pandemics, or government actions.

In the construction context, a properly drafted force majeure clause can be the difference between absorbing financial penalties and securing a lawful extension or excuse from performance. However, Virginia courts historically interpret these provisions narrowly. Simply referencing “events beyond a party’s control” often isn’t enough. Courts look for specificity—what exactly was listed, how the language is structured, and how the delay ties back to those triggers.

What 2024 Taught Us About Force Majeure in Virginia

One of the most important takeaways from recent cases is the increasing emphasis on foreseeability. Courts are scrutinizing whether the event causing the delay was truly unforeseeable at the time the contract was executed. In a 2024 dispute out of Fairfax County, for example, a subcontractor cited shipping congestion and steel shortages to excuse its delay. The court rejected the claim, noting that both issues had persisted for several years and should have been anticipated and accounted for in the contract.

Another key trend is the importance of clear and specific language. In a separate case, a contractor successfully invoked force majeure after extreme flooding disrupted site access in Northern Virginia. The difference? The contract expressly listed “acts of God, including floods” as qualifying events. The court emphasized that had this language not been included, the outcome could have easily shifted against the contractor.

Finally, courts are consistently enforcing strict notice requirements. Construction contracts often contain deadlines—sometimes as short as five days—for providing written notice of a force majeure event. Failure to meet these procedural requirements, even with a legitimate delay, can undermine an otherwise valid claim.

Updating Construction Contracts for the Future

Given the current legal landscape, contractors and owners should prioritize revising standard contract language—particularly for projects scheduled to begin during 2025.

Force majeure clauses should be reviewed for specificity and modern relevance. It’s no longer enough to list general terms like “government interference” or “unforeseen delays.” Contracts should address the kinds of events now impacting the construction industry: port closures, pandemics, regulatory shifts, labor shortages, and cyberattacks. It’s equally important to balance specific language with carefully worded catch-all provisions that leave room for unexpected developments.

Equally crucial is the coordination between force majeure and other clauses like delay damages and liquidated damages. These provisions must align. If one clause excuses a contractor from performance, another shouldn’t penalize them simultaneously for the same event. That contradiction creates ambiguity—and fertile ground for disputes.

Material pricing volatility remains a persistent challenge. If your contracts don’t already contain a price escalation clause, now is the time to include one. These clauses can tie pricing adjustments to an index, such as the ENR Construction Cost Index, or allow for cost renegotiation when prices rise beyond a certain percentage.

Finally, make sure your subcontractor agreements contain consistent and enforceable language. Flow-down provisions that extend protections and obligations through the project team are critical. If your subcontractor’s force majeure language doesn’t mirror what’s in your prime contract, you may find yourself squeezed in the middle during a dispute.

Mitigating Risk Beyond the Page

While strong contract language is the foundation to a successful relationship between the parties to a contract, practical steps during the life of a project are equally important. Document everything. Keep clear records of when delays begin, the impact on scheduling, and what steps are taken to mitigate the damage. Courts and project owners alike look more favorably on contractors who act in good faith and communicate early.

Engage legal counsel early in your planning process. By the time a dispute arises, options are often limited. But with proactive review and negotiation, many of these conflicts can be avoided altogether.

Conclusion: A Stronger Contract Starts with Clarity

The events of 2024 proved again that construction projects are increasingly vulnerable to forces beyond anyone’s control. Virginia courts have made clear that only well-drafted, timely enforced force majeure clauses will hold up when disputes arise. Generalized language, late notice, or vague catch-all’s won’t offer the protection many contractors think they have.

Whether you’re launching a new project, negotiating a subcontract, or navigating a delay claim, now is the time to review your contracts with care.

If you’d like guidance on updating your construction agreements or handling a force majeure-related dispute, please contact Juanita Ferguson at (703) 284-7243 or jferguson@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.