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07 January 2019
Construction project schedules are oftentimes the source of many disputes between project owners and contractors. These disputes notoriously evolve into the subject of litigation and arbitration claims that assign fault for delayed project completion to one party or another. A party finding itself in such a scheduling dispute involving concurrent delays will need to demonstrate that the delays it caused did not affect the project completion date, while delays caused by the other party did impact the schedule. One way to prove this is to effectively evaluate the float on the project schedule and to make a careful evaluation of the circumstances surrounding each delay, including which party had the right to absorb any available project float. Oftentimes when delays occur and float is available, each party assumes it has a right to absorb the float. There are sensible reasons why one party may assume entitlement to float and subsequent exemption from liability for damages related to its delay. However, mere assumptions about float ownership—as reasonable as they may seem—could lead to unfavorable outcomes.
Project float is defined as "[t]he amount of postponement which a path of activities can experience without delaying the overall project completion." Titan Pacific Const. Corp. v. U.S., 17 Cl .Ct. 630, 636 (1989). See also MW Builders, Inc. v. United States, 134 Fed. Cl. 469, 478 n.5 (2017) ("The term 'float' refers to the amount of time an activity may be delayed before affecting the critical path of the project"). Ownership of float is critical to a concurrent delay analysis and has a strong impact on whether a contractor has a legal right to delay damages or time extension of a project.
Contractors sometimes assume that they should own and control any float on a project schedule. Many construction contracts require the contractor to control means and methods in the most efficient manner, including effectively sequencing work on the project. Having the ability to control project sequencing and coordination assists the contractor in creating the schedule and estimating the completion and float times for all activities. When delays later interrupt the schedule, the contractor may be responsible for using means and methods to efficiently make adjustments so that the project may nonetheless finish on time when possible. The contractor could arguably also use any available project float for schedule recovery.
For this reason, some construction contracts may include clauses granting the contractor float ownership. Such clauses could mean that owner-requested changes to activities that are not on the critical path require the owner to grant an extension to the contract completion date, despite the availability of unused float. If the contractor is contractually granted ownership of float, the contractor may argue that it has the right to use the float however it wishes—including reserving the float as a safety net for any contractor-caused delays, or conserving the float in an effort to complete the project ahead of schedule.
It is not completely safe to assume however, that a contract clause granting the contractor ownership of project float will fully safeguard the contractor from being affected by owner-caused delays. A contractor's responsibility to control the means and methods of the project likely involves the contractor's good faith effort to mitigate delays. If the owner causes a delay, the contractor owning float nonetheless may have a duty to adjust the work and schedule to mitigate the effects of that delay. The owner may likely be responsible for any costs related to the adjustment of the work and the mitigation of the delay without use of available float, but the contractor is still affected by an owner's delay because it may have to work to implement the same scheduling and sequencing adjustments required when the owner simply utilizes available float.
Owners sometimes assume that they should own all available project float. After all, the owner is financing the project and owns and takes responsibility for its construction and completion. If a contract specifies that the owner of a project controls the float, the owner may argue that it has the right to direct the contractor to make non-critical changes without being required to grant the contractor an extension of the completion date. The owner may also argue that in certain circumstances, it has the right to use the float to excuse itself for its own delays. If the length of the owner-caused delay does not overrun the project float, it likely will not affect the critical path. In this situation, the owner may not be required to extend the project completion date, despite being responsible for project delays.
A contract clause granting float ownership to a project owner, however, may not shield the owner from the obligation to compensate the contractor for any damages that the owner's non-critical delays cause. For example, an owner who uses float to make a change to a non-critical activity that requires additional manpower or materials may not be required to extend the contract completion date, but likely will be required to compensate the contractor for any costs associated with implementing the owner's requested change.
If the contract does not specify which party owns the float, the float is typically assumed to be owned by the project itself. This means neither the owner nor the contractor has exclusive control over the float. The float is instead consumed by whichever party needs it on a "first come, first served" basis. Here are two examples with different outcomes that illustrate the implications of shared float: A contractor builds a schedule indicating that glass window installation on a project carries 32 days of float before it begins to affect the critical path. The owner, at some point, decides to implement circular windows on the project, rather than keeping the original square-shaped design contemplated in the project schedule. This increases the amount of time needed to install the glass windows on the project. The contractor determines that cutting circular windows takes 29 days longer than cutting squared windows. The owner's change therefore causes a delay and consumes all but 3 of the 32 days of float available for window installation. This delay is clearly the fault of the owner, but does not require the owner to grant a contract extension because the delay does not affect the critical path of the project, as the owner had a right to use available project float to offset its delay.
Conversely, if the contractor experienced 5-day delay in the staining of the glass for the windows prior to the owner requesting a change in the shape of the windows, the contractor has the right to use 5 of the 32 days of float, leaving 27 days of float remaining. The owner's subsequent 29-day circular window change would then overrun the available float and affect the critical path, requiring the completion date to be extended by 2 days. In each example, the first party to use the float is granted priority of ownership. If the other party is responsible for a subsequent, additional delay to the same activity on the schedule, it is only allotted whatever amount of float is remaining. Delays running beyond the remaining float may require a contract extension or delay damages.
Successfully staking claim on project float may excuse a party's delay in a concurrent delay dispute. This should not be done by reliance on assumptions of float ownership. Rather, the parties should engage experienced counsel to negotiate a contract clause that clearly and unambiguously assigns ownership of project float. Such clauses may not offer unbridled use of non-critical delays to the float-owning party, but they allow the parties greater control over the possibilities of legal outcomes and provide a clear understanding between the parties of how float is to be utilized. If the parties do not specify float ownership, shared float is assumed and the parties then lose the ability to specify how the float is allocated. When the parties share project float, they must take care to expeditiously exercise their right to it, as float is consumed on a first come, first served basis. Simply assuming that the amount of float indicated on a project schedule will be available at any given time could have grave consequences. Speaking with legal counsel experienced in construction law matters, including scheduling and delay issues, is helpful to any party who wishes to proactively address float ownership issues and avoid or limit future liability for delays on a construction project.
For further information on this topic please contact Whitney Judson at Kilpatrick Townsend & Stockton LLP by telephone (+1 281 809 4100) or email (firstname.lastname@example.org). The Kilpatrick Townsend & Stockton LLP website can be accessed at www.kilpatricktownsend.com.
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