By Michael C. Loulakis and Ashley P. Cullinan
Most construction contracts have one or more clearly defined date for completion of the work, whether that be a milestone, substantial completion, or final completion. However, what if the completion deadline is not actually defined in the contract? Does that mean there is no remedy if the contractor is slow in performing the work? Does a “time is of the essence” clause give safe harbor to make a delay claim against the contractor?
A recent decision from the U.S. District Court for the Western District of New York, The Pike Co. Inc. v. Tri-Krete Ltd., specifically addressed this situation in considering the implications of parties using “TBD,” or “to be determined,” as the completion date.
The case
The project involved the construction of student dormitory buildings at Marist College in New York. The college chose Pike as its general contractor, with the work being divided into two phases, namely: Phase 1 for dormitories identified as Buildings A and B, and Phase 2 for dormitories identified as Buildings C and D. Although Pike began work on the project in mid-2016, the college and Pike did not sign their agreement for the project (the prime contract) until June 2017. The prime contract required Pike to complete construction of Building C by Aug. 24, 2017, but it did not specify a completion date for Building D. Rather, it stated that Building D’s completion date was TBD.
Pike retained Tri-Krete to install the precast concrete wall panels for the Phase 2 buildings. Pike and Tri-Krete entered into a master services agreement in October 2015, on an unrelated project, and prior to Phase 2. The parties entered into a work order for Phase 2 (presumably issued under the master services agreement) dated June 14, 2016, and executed that same day.
The work order had an attachment called the Initial Guideline Construction Schedule that indicated that “Building C was to be ready for wall panel installation on October 24, 2016, and Building D was to be ready for wall panel installation on November 30, 2016,” according to the decision. The decision did not indicate whether Tri-Krete had a specific duration to complete its work after the respective buildings were ready for panels to be installed.
While Building C was completed late, it was ready for the fall semester. Building D was not completed until early December 2017. According to Tri-Krete, Phase 2 was plagued with problems from the beginning, and Tri-Krete’s work was delayed because, among other things, Pike failed to manage subcontractors whose work (e.g., foundation pouring and structural steel erection) preceded Tri-Krete’s work. In turn, Pike placed blame for project delays on Tri-Krete.
Pike sued Tri-Krete for delay damages in a New York federal court in April 2018, and Tri-Krete counterclaimed for its own delay damages. Both parties ultimately filed motions for summary judgment on a variety of issues. One of the issues that Tri-Krete raised on summary judgment was that because the prime contract did not require a completion date for Building D, Pike did not have a contractual obligation to complete Building D for the fall semester and, accordingly, that Pike should be precluded from seeking from Tri-Krete any time-related damages for delays arising after Aug. 31, 2017.
The ruling
In support of its position, Pike argued that its master services agreement with Tri-Krete contained a provision stating that: “(t)ime is of the essence as to the prosecution of the Subcontract Work,” and that Tri-Krete breached this provision. The court found this argument unpersuasive. In the court’s view, the failure of the parties to update the prime contract from a TBD completion to a firm completion date reflected “an intent that time was not of the essence, since if it was, presumably the parties would have ensured that a deadline was provided.”
The court also noted that the master services agreement was executed almost two years before the prime contract. Because the prime contract failed to provide a completion date for Building D, the court concluded that this “constitutes a contrary intent to what was previously expressed” in the master services agreement and that Pike could not incur damages when it had no obligation to finish construction on Building D by Aug. 31, 2017.
Pike unsuccessfully asserted that time was of the essence because of the Initial Guideline Construction Schedule attached to the work order, which set forth a “desired must finish by” date of Aug. 1, 2017, for Building D. The court noted that those desired completion dates continued to change before Tri-Krete began panel installation and that the work order itself did not provide a definite time for performance. Importantly, the court concluded that a “desired must finish by” date does not necessarily make time of the essence.
Pike argued that even if there were no contract requirement making time of the essence, it had the right to unilaterally make time of the essence by giving “clear and unequivocal notice” that the contract must be performed within a reasonable time. The court concluded that the record did not support the conclusion that Pike gave such clear and unequivocal notice. The record indicated that completion dates for Buildings C and D, as well as the wall panel installation, were pushed back multiple times.
The record also indicated that when the prime contract was entered into, the college had made the decision to reset Building D completion for January 2018 because it could not be completed by the fall semester, and that this was a reason for the TBD completion date being used in the contract. The court also noted language in the master services agreement that required Pike to grant Tri-Krete an extension of time until January 2018 to complete Building D, given that the college reset completion to that date.
The court ultimately concluded that Tri-Krete was entitled to summary judgment on the issue of Pike’s ability to pursue time-related damages after Aug. 31, 2017, and precluded Pike from seeking time-related damages from Tri-Krete after that date.
The takeaways
As evident by the dispute in this case, there are substantial risks to both parties when their construction contract does not clearly express schedule expectations. This is particularly the case for subcontract relationships, in which completion dates are typically derived from the general contractor’s schedule with the owner.
What’s more, the court was clearly unimpressed by Pike’s arguments, focusing heavily on the absence of specific language in the applicable contracts that created a firm completion date for Building D. The court wrote:
Pike’s arguments fail to acknowledge the obvious — that since it had no obligation to deliver Building D by August 31, 2017, there was no delay in the completion of that building, and therefore no associated damages. Rather, as far back as when the (prime contract) was signed in June 2017 — well before the original August 2017 deadline — there was no completion date for Building D.
The court was also troubled by the failure of the college and Pike to update the prime contract rather than leaving in “TBD” for the date of completion.
This particular issue was just one of several addressed in the decision. The court was heavily influenced by the fact that the college never pursued a delay damage claim against Pike, although one was apparently threatened over the course of the project. It was also influenced by the failure of Pike to consider that Tri-Krete was being impacted by late completion of predecessor activities over the course of the project.
Michael C. Loulakis is the president and CEO of Capital Project Strategies LLC in Reston, Virginia.
Ashley P. Cullinan is an associate with Smith Currie Oles in Tysons, Virginia.
This article first appeared in the January/February 2026 issue of Civil Engineering as “‘Time Is of the Essence’ Clause Does Not Overcome Absence of Contract Completion Date.”
