CONTRACTOR’S BURDEN WHEN IT COMES TO DELAY

When a contractor is challenging the assessment of liquidated damages, or arguing that it is entitled to extended general conditions, the contractor bears a burden of proof to establish there were excusable delays that impacted the critical path and, in certain scenarios, the delays were not concurrent with contractor-caused delay:

When delays are excusable, a contractor is entitled to a time extension, such that the government may not assess liquidated damages for those delays.  The government bears the initial burden of proving that the contractor failed to meet the contract completion date, and that the period of time for which the government assessed liquidated damages was correct. If the government makes such a showing, the burden shifts to the contractor to show that its failure to timely complete the work was excusable. To show an excusable delay, a contractor must show that the delay resulted from “unforeseeable causes beyond the control and without the fault or negligence of the Contractor.”  “In addition, the unforeseeable cause must delay the overall contract completion; i.e., it must affect the critical path of performance.” Further, the contractor must show that there was no concurrent delay.

Ken Laster Co., ASBCA No. 61292, 2020 WL 5270322 (ASBCA 2020) (internal citations omitted).

Arguing delay without understanding your burden of proof obligations will be problematic, as the contractor in Ken Laster found out.  In this dispute, a contractor was issued task orders to repair, prepare and plaint certain floating structures pursuant to task orders.  The contractor was liable for liquidated damages if it did not timely complete the work.  The contractor completed the work 289 days late and the government assessed liquidated damages.  The contractor challenged the assessment of liquidated damages. However, the contractor did NOT show how anything it claimed the government did to delay completion impacted the critical path or that there was no concurrent delay.  Without such showing, the contractor was unable to establish that liquidated damages were improper as it was unable to show there was excusable delay or that the delay to the critical path it caused was concurrent with an owner-caused delay to the critical path.

Remember, if you are a contractor challenging the assessment of liquidated damages and/or claiming you are entitled to delay damages (extended general conditions), you have a burden of proof.  You will want to establish that there was excusable delay, i.e., owner-caused delay, that impacted the critical path of the project resulting in the delay to the completion date, and the excusable delay was not concurrent with delay you caused to the completion date.  This burden will routinely require expert opinion that will need to analyze schedules and contemporaneous project documentation to render these opinions (that there was excusable delay, the delay impacted the critical path, and in certain scenarios, the excusable delay was not concurrent).   It is important to note, however, that if you are able to establish there was concurrent delay, you would still typically be entitled to a time extension, however, you would not be entitled to compensation for the delay (extended general conditions).  But, the burden is still on you to establish there was concurrent delay.

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.

 

QUICK NOTE: COVID-19 CLAIM – PROVING CAUSATION

In certain jurisdictions, the number of people testing positive for COVID-19 is on the rise.  As this occurs, there is the possibility that a construction project will have to deal with one or more workers testing positive.  That is the current reality.   If the dialogue has not occurred before, now is the time to discuss any enhanced measures—above OSHA guidelines—that could be implemented to address this reality and mitigate the risk.  Part of the reality, though, is that regardless of the enhanced measures and mitigation, it is impossible to truly prevent this risk.

No one disputes COVID-19.  There may be a dispute as to whether COVID-19 constitutes a force majeure event or some other event, however, before you start labeling it, you still NEED TO PROVE the impact caused by COVID-19.  There needs to be a cause-and-effect relationship so you can address (i) how this impacted the critical path of your schedule and/or (ii) how this impacted labor productivity.  In other words, you need to prove causation.  Stating there was a delay or loss of productivity without establishing the cause-and-effect relationship (i.e, causation) provides no value because it does not support the production impact or time extension and, without either, there is no basis for additional compensation (even if you establish it should be deemed an excusable, compensable delay).

We have all read articles about how COVID-19 can impact a project.  This does not mean that all or any of these issues impacted your project.  If they did, and you are seeking a time extension and/or additional compensation, remember, it is your burden of proof to support the entitlement, both as to time and money.  This is not an easy task and, in many situations, the impact may be very difficult to actually prove.  But again, stating you have a COVID-19 impact without truly demonstrating causation will be, and should be, a claim that is denied.  If you need assistance putting together or evaluating a COVID-19 claim, make sure you work with experienced counsel and consultants to best package and present the claim.

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.

 

QUICK NOTE: SIMPLE BUT THORNY ISSUE OF “CONCURRENT DELAY”

The definition of concurrent delay” seems simple, but it can give rise to thorny issues including misunderstandings, not truly digging into the causes of the alleged concurrent delay, and the lack of apportionment of the concurrent delay period.   This is why when dealing with any delay it is good practice to work with a scheduling consultant in conjunction with counsel that understands how to best prosecute or defend against delay-related claims.   This includes dealing with the simple but thorny issue of concurrent delay.   There is a difference between arguing concurrent delay and actually proving it or apportioning the time period that benefits your interests or allows you to understand the practicality of the delay period.

In a nutshell:

If the contractor and the [owner] cause [independent] concurrent delays that affect the critical path of performance, neither party can recover delay-related damages unless the delays can be apportioned between the parties.”  K-Con Building Systems, Inc. v. U.S., 131 Fed.Cl. 275, 328 (Fed.Cl. 2017).   For there to be a concurrent delay, there needs to be independent delays by both the owner and contractor, and the independent delays needs to impact the critical path.  “If two delays occur at the same time and one is on the critical path and the other is not, then the delays should not be considered concurrent.”  CONBRIEF No. 2004-10, Concurrent Delay (2004).

Note that concurrent delay can occur in two different scenarios: (1) when both parties are responsible for delaying the same critical activity over the same period or (2) when each party delays a separate critical activity at the same time (there were multiple critical paths).  Both delays must be independent of one another.  In other words, the contractor’s delay cannot be as a result of, or contingent upon, the owner’s delay, or vice versa.

CONBRIEF No. 2005-12, Basic Analysis for Delay and Disruption Claims (2005)

For more on concurrent delay check here.  For more on understanding basic scheduling terms, check here.

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.

 

MUTUAL OR CONCURRENT DELAY CAUSED BY SUBCONTRACTORS

How are delay damages treated when two subcontractors cause a mutual or concurrent delay to the project?

Assume multiple subcontractors concurrently contributed to an impact to the critical path resulting in a delay to the project.  The delay caused the prime contractor to: (1) be assessed liquidated damages from the owner and (2) incur extended general conditions.  The prime contractor will be looking to the subcontractors for reimbursement for any liquidated damages it is assessed along with its extended general conditions costs.

There is really no great case that addresses this point when two (or more) subcontractors mutually or concurrently delay the project.  It is also not uncommon, and frankly expected, that a subcontractor will point the finger at another subcontractor for the cause of the delay or that another subcontractor was concurrently delaying the project.

The prime contractor should absolutely, without any exception, undertake efforts with a scheduling consultant to allocate the delay caused by subcontractors.  Taking an approach that joint and several liability applies between multiple subcontractors and/or not trying to apportion delay because the subcontractors concurrently delayed the critical path at the same time is probably not the best approach. The prime contractor should have an expert render an opinion as to the allocation of the delay period amongst responsible subcontractors that delayed the critical path. Not doing so, in my opinion, is a mistake.

For example, in the unpublished decision in Alcan Electrical & Engineering Co., Inc. v. Samaritan Hosp., 109 Wash.App. 1072 (Wash. 2002), a dispute arose between a general contractor and its electrical subcontractor on a hospital project.  The general contractor looked to recoup assessed liquidated damages caused by the electrical subcontractor.   The project was 201 days late attributable to the electrical subcontractor and, largely, the mechanical subcontractor. The trial court determined that the electrical subcontractor was only liable for 31 days of delay.

An appeal arose because the general contractor wanted to hold both subcontractors jointly and severally liable for the 201 days of delay. The Washington Court of Appeals was not accepting this argument.  Instead, it held that that the amount of delay attributable to the two subcontractors is a question to be resolved by the trier of fact.  This is exactly what the trial court did by finding that of the 201 days of delay, 31 days of delay was caused by the electrical subcontractor while the remaining 170 day of delay was caused by the mechanical subcontractor.

But, in another example from an unpublished decision, U.S. el rel. Belt Con Const., Inc. v. Metric Const. Co., Inc., 314 Fed.Appx. 151 (10th Cir. 2009), a general contractor looked to allocate liquidated damages to its masonry subcontractor due to delays to the construction of a federal training center.  The subcontract allowed the general contractor to equitably allocate delay damages among subcontractors as long as its decision was made in good faith.  The trial court, affirmed by the appellate court, found that the general contractor did not allocate the damages in good faith because the initial delay analysis it performed was submitted to the owner and allocated ALL of the delay to the owner.  Then, for purposes of trial, it simply adopted its trial expert’s analysis that allocated delay to subcontractors.  This issue alone hurt the contractor and, importantly, its expert’s credibility at trial.  (This is a reminder that there should be ONE delay analysis for the project and what is presented to the owner should not be conflicted with by delay analysis separately presented to subcontractors.)

Moreover, the court, applying California law, found that there was no law that supported the apportionment of a true concurrent delay. But, in my opinion, this did not make much sense because at trial both the general contractor and subcontractor’s experts rendered opinions allocating the delay caused by the culpable subcontractors.

Irrespective of the Court’s decision in this case, the best approach, mentioned above, is to allocate the delay period.  Thus, if two subcontractors mutually contributed to a 30-day window of time, an expert should be used to analyze that 30-day window of time to allocate the days to the two subcontractors.  Again, taking the approach that joint and several liability should apply or that an allocation is not necessary is a mistake.

 

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.

 

PROVING IMPACTS TO CRITICAL PATH TO DEFEAT LIQUIDATED DAMAGES ASSESSMENT

When a contractor is staring down the barrel of an owner’s assessment of liquidated damages, the burden will fall on the contractor to establish that the delay was attributable to the owner and the owner’s agents.  The contractor will want to do this not only to defeat the assessment of liquidated damages, but because it will want to establish that the delay caused it to incur extended field overhead (general conditions) for which the owner is responsible.   A contractor supports its burden by proving the impacts to its critical path.  “In general, proving an allegation of government-caused delays without a means of showing the critical path is a steep prospect.”  James Talcott Construction v. U.S., 2019 WL 1040383, *8 (Fed. Cl. 2019) (unreported opinion) (finding that because contractor did NOT present a critical path analysis it could not support its claim for delay caused by the government).

Avoiding the assessment of liquidated damages means the contractor needs to support that it encountered excusable delay and it is/was entitled to an extension of time to complete the project.

An excusable delay is one due to causes that are unforeseeable, beyond the contractor’s control, and not resulting from its fault or negligence.  The delay must be to overall contract completion, meaning ‘it must affect the critical path of performance.’  If the failure is excusable, then appellant [contractor] would be entitled to time extensions and thus remission of LDs [liquidated damages].

Appeal of – Maruf Sharif Construction Co.,ASBCA No. 61802, 2019 WL 410470 (2019) (internal citation and quotation omitted).

A contractor presenting a critical path analysis allocating delay may become imperative when seeking remission of a liquidated damages assessment and, potentially, proving its own entitlement to extended general conditions.  Again, the burden falls on the contractor; therefore, not proving the impacts to the critical path and the excusable delay the contractor should be entitled to will likely result in the contractor failing to carry its burden.

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.

THE CONSTRUCTION PROJECT IS LATE – ALLOCATION OF DELAY

images-1The construction project is late.  Very late.  The owner is upset and notifies the contractor that it is assessing liquidated damages.   The contractor, in turn, claims that the project is late because of excusable, compensable delays and, perhaps, excusable, noncompensable delays.  This is a common and unfortunate story between an owner and contractor on any late construction project.  Now the fun begins regarding the allocation of the delay!

 

Through previous articles, I discussed that in this scenario the burden really falls on the contractor to establish that the liquidated damages were improperly assessed against it and, thus, it is entitled to additional time and/or extended general conditions as a result of excusable delays.   Naturally, this requires the contractor to develop a critical path analysis (time impact analysis) allocating the impacts / delays (and the reasons for the impacts/ delays) to the project completion date. The reason the burden really falls on the contractor is because the owner’s burden is relatively easy – the project was not complete on time pursuant to the contract and any approved changed orders. 

 

In a recent opinion, East Coast Repair & Fabrication, LLC v. U.S., 2016 WL 4224961 (E.D.Va. 2016), the court contained a very detailed and sound discussion regarding this common story between an owner and contractor.   Although this is a case involving a ship repair company overhauling and repairing a Navy  (government) vessel, the court’s discussion would apply to any late construction project and the allocation of delay to a late project.   Please take the time to read the Court’s discussion below as it lays the framework for the allocation or apportionment of delay. 

 

In the context of litigating liquidated damages assessed by the government in a construction contract, the government first must meet its initial burden of showing that “the contract performance requirements were not substantially completed by the contract completion date and that the period for which the assessment was made was proper.” Once the government has met that burden, the burden then shifts to the contractor “to show that any delays were excusable and that it should be relieved of all or part of the assessment.

In order for the contractor to carry its burden it must “demonstrate that the excusable event caused a delay to the overall completion of the contract, i.e., that the delay affected activities on the critical path” because the contractor “is entitled to only so much time extension as the excusable cause actually delayed” completion of the contract.

***

Having considered the somewhat conflicting positions taken on this issue in prior federal cases, this Court finds that the better legal interpretation regarding the proper treatment of “sequential delays” (where one party causes a delay followed by a separate-in-time delay caused by the other), is that “apportionment” should be permitted when the evidence provides a reliable basis on which to determine which party is responsible for which delay. Stated differently, the fact that the Government was solely responsible for some delays in this case…does not preclude the Government as a matter of law from recovering some amount of liquidated damages as a result of subsequent, and conceptually distinct, delays deemed to be solely the fault of ECR/Técnico [Contractor and its subcontractor].

 

As to performance delays deemed to be “concurrent,” (both parties causing a delay at the same time), the established law reveals that ECR [Contractor] is permitted to seek an extension of the project completion date for such delay, as long as the delay caused by the Government would have disrupted the “critical path” in the absence of the delay caused by the contractor. However, while ECR may seek an extension of the performance period for a concurrent delay, ECR is precluded by law from obtaining a monetary award to compensate it for “delay damages” for such delays, with the appropriate relief being only the extension of the project completion date (which, in effect, results in a day-for-day reduction of the Government’s liquidated damages claim). 

East Coast Repair & Fabrication, supra, at *13-14 (internal quotations omitted).

 

 

 

 

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.

CONSTRUCTION SCHEDULING IS AN IMPORTANT TOOL

imagesConstruction scheduling is an important tool for planning, managing, and forecasting the performance of work on construction projects.   Generally CPM (critical path method) schedules, or schedules depicting the project’s critical path, are prepared beginning with the baseline schedule (the initial as-planned schedule) followed by schedule updates (perhaps monthly updates) as the work progresses.  Schedules identify milestone dates (such as the substantial completion date) as well as the dates and durations of construction activities / tasks.

 

Check out this chart for understanding key terms and meanings when it comes to CPM (critical path method) scheduling. 

 

Besides scheduling being a tool used for project management, schedules are helpful in assessing and measuring delays to the critical path, the acceleration of activities, and inefficiencies

 

Finally, check out this article for more information on the importance of understanding construction scheduling for strong project management.

 

 

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.

 

DELAY, DELAY AND MORE DELAY! EXCUSABLE OR NON-EXCUSABLE?

imagesThe word “delay” is an all too familiar word utilized during construction because it is not remotely uncommon for a construction project to experience delays.  While contractors never want a delay to actually happen because time is money, delays unfortunately do happen as construction schedules are not written in stone.

 

There are two types of delay: (1) non-excusable delay (or inexcusable delay) and (2) excusable delay.

 

Non-excusable delay is the type of delay that contractors never want to hear.  This is the delay solely caused by them and may trigger the owner’s assessment of liquidated damages.  Not only this, but this type of delay will not entitle the contractor to additional time or compensation.  Why? Because again, the delay was caused by the contractor, hence the reason why it is the type of delay a contractor never wants to hear!

 

Excusable delay is not the fault of the contractor and is the type delay that will entitle the contractor to additional time, additional compensation, or both.  Excusable delay is further broken down into (a) compensable, excusable delay (entitling the contractor to additional compensation and time) and (b) non-compensable, excusable delay (entitling the contractor to additional time, but not additional compensation).

 

Excusable, compensable delay is a delay solely caused by the owner or its consultants and is not caused by the contractor.  This is the good type of delay in the sense that it should entitle the contractor to additional time to substantially complete the project and, based upon the contract, additional compensation in the form of extended general conditions.  This type of delay could be the result of owner-directed changes, differing site conditions, design revisions, suspension of performance, i.e., actions that are outside of the contractor’s control but within the owner and its agents’ control.

 

Excusable, non-compensable delay, on the other hand, is typically your force majeure delay including unusually severe weather conditions, fire, or labor strikes—these are the types of delay that are beyond any parties’ control in the construction process, which is why the contractor would be entitled to additional time, but not additional money.

 

The contractor claiming excusable delay has the burden of proving the delaySee R.P. Wallace, Inc. v. U.S., 63 Fed.Cl. 402, 409 (Fed.Cir. 2004) (“The contractor must prove that the excusable event proximately caused a delay to the overall completion of the contract, i.e., that the delay affected activities on the critical path.”).  For this reason, it is important that the contractor well-document the cause of the delay including how the delay impacted its critical path, and provide timely notice under the contract regarding the event causing the delay.

 

Now, construction contracts contain may contain a “no damage for delay” clause that is designed to prevent the contractor from being entitled to extended general conditions for excusable, compensable delay.  Basically, if there is an excusable delay, the contractor’s sole and exclusive remedy is an extension of time and not extended general conditions.  The “no damage for delay” provision is enforceable in many jurisdictions.  While there are certain recognized exceptions to the application of an enforceable “no damage for delay” provision (e.g., fraud, active interference), a contractor agreeing to such a provision certainly cannot operate on the premise that it will argue around it in the event of an excusable, compensable delay.  Rather, the contractor needs to operate on the premise that it is assuming a certain risk that a delay could be caused by the owner or the owner’s agents and the contractor’s sole remedy for the delay is more time to substantially complete the project.

 

The objective for any contractor is to understand what the legal implications and consequences are for delays on a construction project, whether an excusable delay or non-excusable delay.  Some tidbits for contractors to absolutely consider on the front-end and prior to the execution of the contract include:

 

  • Does the contract define excusable delay that would entitle the contractor to additional time and/or money?  For instance, in government contracting, the prime contract may incorporate Federal Acquisition Regulation 52.249.10 and 52.249.14 regarding excusable delay, as set forth below.
  • Is there a “no-damage-for-delay” provision in the contract?
  • What are the notice provisions to ensure the contractor is timely providing notice for the cause of the delaying event? Notice should always be given even if the full impact of the delay is unknown. Many contracts contain onerous language that if notice is not given with “x” number of days after the delaying event, the contractor waives any and all claims for delay.  Watch out for this!
  • Does the contractor have appropriate language in its subcontracts that will enable it to flow-down damages associated with non-excusable delay (the owner’s assessment of liquidated damages and the contractor’s own extended general conditions)?
  • Does the contractor have an experienced scheduling consultant or scheduler that can capture the delaying event to show the event impacted the critical path?

 

 

52.249-10    Default (Fixed–Price Construction) (APR 1984)

(a) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract including any extension, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work (or the separable part of the work) that has been delayed. In this event, the Government may take over the work and complete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the Government resulting from the Contractor’s refusal or failure to complete the work within the specified time, whether or not the Contractor’s right to proceed with the work is terminated. This liability includes any increased costs incurred by the Government in completing the work.

(b) The Contractor’s right to proceed shall not be terminated nor the Contractor charged with damages under this clause, if–

(1) The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (i) acts of God or of the public enemy, (ii) acts of the Government in either its sovereign or contractual capacity, (iii) acts of another Contractor in the performance of a contract with the Government, (iv) fires, (v) floods, (vi) epidemics, (vii) quarantine restrictions, (viii) strikes, (ix) freight embargoes, (x) unusually severe weather, or (xi) delays of subcontractors or suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or negligence of both the Contractor and the subcontractors or suppliers; and

(2) The Contractor, within 10 days from the beginning of any delay (unless extended by the Contracting Officer), notifies the Contracting Officer in writing of the causes of delay. The Contracting Officer shall ascertain the facts and the extent of delay. If, in the judgment of the Contracting Officer, the findings of fact warrant such action, the time for completing the work shall be extended. The findings of the Contracting Officer shall be final and conclusive on the parties, but subject to appeal under the Disputes clause.

(c) If, after termination of the Contractor’s right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Government.

(d) The rights and remedies of the Government in this clause are in addition to any other rights and remedies provided by law or under this contract.

See also F.A.R. 52.249-14 (regarding bolded language).

 

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.

“CRITICAL PATH” AND “CONCURRENT DELAY” BASICS AS INTERPRETED BY COURTS

UnknownThe terms “critical path” or “critical path method (CPM)” are frequently used terms in construction contracts and, importantly, delay-related claims.  These terms refer to the construction schedule and the method to establish delays to the substantial completion date.  To the construction participant,  specifically project management, these terms are must-know terms and are vital to the proper planning and management of the project!  A project is composed of many individual construction activities that are all interrelated.  Each activity has a scheduled duration or the number of days for the activity to be performed.  And, many activities cannot begin until predecessor activities are completed.  Project management needs to understand and appreciate all of this in order to successfully manage a project by the milestone substantial completion date that is agreed upon on the front-end.

 

 

Now, to the non-construction participant or lay person, the terms “critical path” or “critical path method (CPM)” do not mean much because they are not used in everyday language.  However, technical terms that are not part of everyday vocabulary need to be explained so that a lay person that is not a construction participant can understand and appreciate the significance of the terms–think judge or jury!   Oftentimes, the best way to explain the critical path is to analyze  court decisions that have interpreted this term in connection with a construction dispute.  The following are construction cases that have defined or interpreted the critical path:

 

CRITICAL PATH 

 

 

The critical path is the longest series of the work activities through the performance of a whole project. If an activity on the critical path exceeds its scheduled duration, the termination of the project will be delayed unless some other activity on the critical path is performed in less than its scheduled time. A work activity not on the critical path may be completed later than its scheduled time without affecting the termination of the project unless the non-critical activity exceeds its “float” and thereby becomes an activity on the critical path.

U.S. Fidelity & Guar. Co. v. Orlando Utilities Com’n, 564 F.Supp. 962, 968 (M.D.Fla. 1983)

 

The project can be represented by a network of discrete paths that sequence interdependent tasks or milestones leading to project completion. The critical path, the longest path at any point in time, determines the project’s expected completion date.” 

Gulf Contracting, Inc. v. U.S., 23 Cl.Ct. 525, 529, n.2 (Cl.Ct. 1991)

 

 

Essentially, the critical path method is an efficient way of organizing and scheduling a complex project which consists of numerous interrelated separate small projects. Each subproject is identified and classified as to the duration and precedence of the work. (E.g., one could not carpet an area until the flooring is down and the flooring cannot be completed until the underlying electrical and telephone conduits are installed.) The data is then analyzed, usually by computer, to determine the most efficient schedule for the entire project. Many subprojects may be performed at any time within a given period without any effect on the completion of the entire project. However, some items of work are given no leeway and must be performed on schedule; otherwise, the entire project will be delayed. These latter items of work are on the critical path. A delay, or acceleration, of work along the critical path will affect the entire project.

Haney v. United States, 676 F.2d 584, 595 (Ct.Cl. 1982)

 

Critical Path Methodology” (CPM) is a term of art for a method of scheduling and administering construction contracts. The Court of Claims has explained that CPM enables contractors performing complex projects to identify a critical path of tasks that must each be completed before work on other tasks can proceed. A delay on the critical path will thus delay the entire project: Essentially, the critical path method is an efficient way of organizing and scheduling a complex project which consists of numerous interrelated separate small projects. Each subproject is identified and classified as to the duration and precedence of the work. (E.g., one could not carpet an area until the flooring is down and the flooring cannot be completed until the underlying electrical and telephone conduits are installed.) The data is then analyzed, usually by computer, to determine the most efficient schedule for the entire project. Many subprojects may be performed at any time within a given period without any effect on the completion of the entire project. However, some items of work are given no leeway and must be performed on schedule; otherwise, the entire project will be delayed. These latter items of work are on the “critical path.” A delay, or acceleration, of work along the critical path will affect the entire project.

Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1232-1233 (10th Cir. 1999)  (internal citations and quotations omitted)

 

 

As explained, construction schedules contain numerous activities that are interdependent on one another and are required to complete the project.  Each activity contains a duration required to complete the given activity.  Schedules typically identify the milestone of substantial completion.  Most schedules identify the critical path by tracking the longest duration path  through the activities to achieve completion.  If an activity on the critical path is not completed on time, it will delay the completion date.  Sophisticated scheduling software allows contractors to identify each activity’s early start date (earliest time an activity can start provided its predecessor activities are performed), early finish date (simply taking the early start time plus the scheduled duration), late start date (the latest time an activity can start without delaying the completion date by factoring in the scheduled duration), and late finish date (simply taking the late start time plus the scheduled duration).  By showing the early start date and late start date, project management is able to determine the float time with the activity.  In other words, if an activity has both an early start and late start date, the float allows an activity to be delayed from its early start date to its late start date without actually delaying the completion date of the project.  Naturally, there is much more to construction scheduling and determining the critical path (or revising the critical path during the course of construction) than this!  The point is that the critical path, as interpreted in the cases above, is critical because this is really how delays are proven on a construction project (whether the delays are used to offset liquidated damages, establish an entitlement to extended general conditions, or flow down extended general conditions and liquidated damages to the trade subcontractor responsible for the delay):

 

CRITICAL PATH USED TO PROVE DELAYS 

 

 

Contractors have the burden of proving delays attributable to the Government. It may be impossible to establish government-caused [owner-caused] delays without a means of showing the critical path.

Daewoo Engineering and Const. Co., Ltd. v. U.S., 73 Fed.Cl. 547 (Fed.Cl. 2006)

 

In order to prevail on its claims for the additional costs incurred because of the late completion of a fixed-price government construction contract [owner contract], the contractor must show that the government’s [owner’s] actions affected activities on the critical path  of the contractor’s performance of the contract.  The reason that the determination of the critical path is crucial to the calculation of delay damages is that only construction work on the critical path had an impact upon the time in which the project was completed.  One established way to document delay is through the use of Critical Path Method (CPM) schedules and an analysis of the effects, if any, of government-caused events upon the critical path of the project.”

George Sollitt Const. Co. v. U.S., 64 Fed.Cl. 229, 240 (Fed.Cl. 2005) (internal citations and quotations omitted)

 

Sometimes, there are concurrent delays to the project occurring at the same time that both impact / delay the completion date.   Concurrent delays have been defined by courts as:

 

CONCURRENT DELAYS AND APPORTIONMENT 

 

 

 “The doctrine of concurrent delay involves the premise that where both parties to the litigation caused delays then neither party can recover damages for that period of time when both parties were at fault.

Broward County v. Russell, Inc., 589 So.2d 983, 984 (Fla. 4th DCA 1991)

 

 

Where both parties contribute to the delay neither can recover damage, unless there is in the proof a clear apportionment of the delay and the expense attributable to each party.

Blinderman Const. Co., Inc. v. U.S., 695 F.2d 552, 559 (Fed.Cir. 1982) (internal citation and quotation omitted)

 

 

Courts will deny recovery where the delays are concurrent and the contractor has not established its delay apart from that attributable to the government.”

William F. Klingensmith, Inc. v. U.S., 731 F.2d 805, 809 (Fed.Cir. 1984)

 

 

[C]ontractor may not collect damages from the government due to delay where that contractor was itself in a state of concurrent delay. Generally, courts will deny recovery where the delays are concurrent or intertwined.  Even where both parties are responsible for delay, a contractor may not recover unless it is able to apportion the delay and expense attributable to each party.The burden of apportioning delay falls on the plaintiff. Courts will deny recovery where delays are concurrent and the contractor has not established its delay apart from that attributable to the government.

Smith v. U.S., 34 Fed.Cl. 313, 325 (Fed.Cl. 1995) (internal citations and quotations omitted)

 

 

The general rule barring recovery for government-caused unreasonable delay when there has been concurrent delay caused by the contractor does permit recovery, however, when clear apportionment of the delay attributable to each party has been established. Because the equitable adjustment claim for compensable delay is the contractor’s claim, the burden is on the contractor to apportion the delay between the parties. Generally, courts will deny recovery where the delays  are concurrent or intertwined and the contractor has not met its burden of separating its delays from those chargeable to the Government.

George Sollitt Const. Co. v. U.S., 64 Fed.Cl. 229, 238-39 (Fed.Cl. 2005) (internal citations and quotations omitted)

 

 

This articles covers just the basic elements of critical path and concurrent delay based on interpretations from Florida and federal courts.  Understanding these terms and how courts have interpreted these terms is important so parties know what they need to do to prove a delay (and how they need to prove the delay and sustain their burden of proof) based on the factual dynamics and circumstances of their dispute.  Without this understanding, parties are not in the best position regarding developing strategy and themes associated with their case to assist is persuasively presenting testimony / evidence to support their position.

 

For more information on substantial completion, please see: http://www.floridaconstructionlegalupdates.com/what-is-substantial-completion/

 

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.

CONSULTANT’S CORNER: FIVE TIPS FOR BETTER CONSTRUCTION PROJECT DOCUMENTATION

don carlowConsultant’s Corner: In addition to providing perspectives and analysis from a lawyer, it is beneficial to hear from industry professionals and consultants. These are the folks that serve as expert witnesses during litigation / trial and consult with owners and contractors preconstruction and during construction. Consultant’s Corner is dedicated towards hearing from those experienced and respected professionals.

 

Don Carlow (photo) is the owner of Florida Construction and Scheduling Consultants, LLC and has over twenty-five years of experience in CPM planning and scheduling, cost engineering, construction claims analysis, and program and construction management. He serves as both an expert witness and as a consultant preconstruction and during construction in scheduling, forensic delay analysis, cost and damages analysis, and litigation support on construction projects ranging in size and scope.  His project experience includes heavy civil; transportation; pipelines/underground utilities; government/military; mixed-use commercial; airports; hospitals; high-rise; theme parks; hospitality; schools/ universities; and single/multi-family residential.   Mr. Carlow has taken the time to share with us a very important article on maintaining organized and good project documentation based on his experience.

 

FIVE TIPS FOR BETTER CONSTRUCTION PROJECT DOCUMENTATION

 

cpm100-wideWhen it comes to claims and disputes, I have often heard the proverbial advice that “you should document everything.” However, in reality this is rarely done and it is often impossible to accomplish. Normally, the folks on a construction project simply don’t have the time to write down everything that’s going on at the site and at every project meeting and then respond to every email and phone call. In fact, I would not advise you to try! Doing so would be frustrating at best and counterproductive at worst. Your management team should be focused on managing the project. This is especially true on a troubled project, where you have to put out one fire after another. Your team’s efforts should be focused on using their time in the office wisely and making sure that the important items are documented. So, how are they supposed to know which of the items are the most important to document? This article attempts to answer that question by establishing some rules and by providing an objective framework that can be used when deciding how and what to document.

 

1. SUPPORT YOUR POSITION

 

For each contractual disagreement or issue, spend the time to write the letters or emails that support your position and explain why your position is correct. This should be the overall framework from which you are focusing your documentation efforts. Document the issues and events as they occur; take a photo, write an email, or put an extra note in the daily report that explains the event or occurrence from your perspective. Make sure there is evidence in the file that supports and explains your position. You’d be surprised how the resolution of an issue was changed by a single photo or a couple of sentences included in a daily report.

 

2. RESPOND TO EVERY LETTER

 

When is it necessary to write a letter? When someone writes one to you. It is not necessary to engage in a letter-writing campaign (it is simply not true that the person with the highest stack of letters automatically “wins”). But, for each letter that’s written to you make sure there is a written response in the file. One solid letter for each issue is a good rule of thumb. Get your points documented, keeping in mind tip #1, above.

 

3. BE PROFESSIONAL

 

In your written correspondence, always be professional and stick to the facts. Be objective, rational and unemotional. There is no need to tell the owner’s rep that he’s an idiot (even if he is). Many people may be involved in the resolution of the dispute after the project is over and they may never meet you. People are going to form their opinions of you based on what you say and how you say it.

 

4. GIVE NOTICE

 

Notice provisions are written into contracts for a reason. Their purpose is to give the other party time to investigate, mitigate expenses, and track costs. Read your contract and make sure you are complying with the notice requirements. To make giving notice easier, we recommend that our clients develop form notices. At a minimum, we suggest having form notices available for each of the following situations: (a) Excusable Delay/Request for Time Extension, (b) Differing Site Condition, (c) Conflicting Specifications, (d) Acceleration (Directed or Constructive), (e) Disruption of Work Force, and (f) A/E Change. Have your lawyer review the notices before using them in the field.

 

5. RESERVE YOUR RIGHTS

 

I have been involved in several lawsuits in which the judge upheld signed releases on payment applications and change orders, and barred recovery for damages. Have your lawyer review the release language on any document before you sign it. At a minimum, cross out the offending language, or simply write that you are reserving your right to additional money or time for the impact encountered on the project or as a result of the change.

 

Knowing how and what to document will keep your team focused on managing the project and put your company in a much better position when it comes to resolving disputes when they arise.
Please contact Don Carlow for more information regarding the value he can provide to your construction project or litigation team. He can be reached at the following contact information:
Website: http://florida-consultants.com/
Email: don@florida-consultants.com
Phone: (407) 603-6165

 

 

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.