If you have read postings in this blog about delay, you know the contractor needs to prove delay through a critical path methodology (CPM), oftentimes referred to as a critical path or CPM analysis. Not doing so can be fatal to the contractor’s delay claim because the critical path analysis is what proves the causal link between the owner / government’s actions and the contractor’s delay. This was highlighted in a recent appeal with the Armed Services Board of Contractor’s Appeal:
As the Court of Appeals for the Federal Circuit explained…“[a] contractor seeking to prove the government’s liability for a delay has the burden of proving the extent of the alleged delay, the causal link between the government’s wrongful acts and the delay in the contractor’s performance, and the alleged harm to the contractor for the delay.” To establish that “causal link, the contractor must show that the government’s actions affected activities onthe critical path of the contractor’s performance of the contract.” Thus, [the contractor] has the burden of establishingby preponderant evidence both the existence of an excusable cause of delay as well as the extent to whichcompletion of the contract work was delayed as a whole. … (“[T]he delay must be to work on the critical pathbecause only work on the critical path has an impact upon when the project is completed”). General allegations of delay and its impact are insufficient to establish entitlement.
Appeals of – Pinewood Inc. f/k/a PNI Incorporation, ASBCA No. 63588, 2025 WL 1427483 (ASBCA 2025) (internal citations omitted).
In this appeal, the contractor argued excusable delay but did not perform any critical path analysis. The contractor simply relied on argument from its counsel and general allegations. The Armed Services Board of Contract Appeals found this fatal to the contractor’s delay claim:
Other than argument of counsel, [the contractor] offers no record citation supporting a finding that the government’s alleged delay in releasing the taxi yard delayed the critical path of the project. [The contractor’s] failure to present a critical path analysis demonstrating the impact of the government’s alleged delay “is fatal to its claim.”
Id. (citations omitted).
If you are dealing with a delay claim, please appreciate that the causal link is necessary for your burden of proof. No causal link, no delay claim. The causal link is demonstrated through the critical path or CPM analysis. This is analysis performed by qualified delay experts that render expert testimony (opinions) in conjunction with fact witnesses and contemporaneous project documentation. If you are looking to avoid the critical path analysis or the expert opinions on the critical path, then you are willing to have your delay claim dead on arrival.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.