The Project required relocation of several overhead and underground utilities within the right of way. Some third-parties took an extra three months to relocate their utilities. Liquidated damages for late completion were set at over $4,000 per day. The contractor submitted a claim for delays seeking a 187-time extension and time-related costs for the same. The contractor submitted a separate claim for acceleration seeking its costs to speed up performance striving to meet the completion deadlines. One problem for the contractor was a contract provision that waived damages for delay - a No-Damages-for-Delay (ND4D) provision, stating "[i]t is understood and agreed that... no additional compensation will be allowed for delays, inconvenience, or damages sustained by [contractor] due to any interference from the said utility appurtenances or the operation of moving them." Under Maryland law, ND4D clauses are enforceable unless there is intentional wrongdoing, gross negligence, fraud, or misrepresentation by the public agency. Although it was undisputed that the utility relocation was delayed and without the contractor's fault, the ND4D clause precluded the contractor's recovery of compensation for delays since none of the exceptions applied. The contractor could not recover its time-related costs, such as, extended site overhead and home office overhead.
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