When courts discuss whether the delay was within the contemplation of the parties, the inquiries usually address whether the delays were reasonable or foreseeable. If the delays are found to be unreasonable or not foreseeable, then the delays under this exception are found to be outside the scope of the no damage for delay clause. Therefore, the touchstone for the application of this exception is reasonable foreseeability. In other words, the court will look to see whether, at the time of contracting, the delays were contemplated.[101]
Courts carefully scrutinize the contract documents to determine if the delay was contemplated by the parties. In Beltrone Construction Co. v. State, the court reviewed the warnings in the contract to determine if the delays were foreseeable:
The contract between claimant and the State recited that due to the award of more than one prime contract for the project, inherent delays were contemplated and the State could not “guarantee the unimpeded operations of any contractor”. Furthermore, under the terms of the agreement, the State could not be held liable for ordinary delays or extraordinary delays...
