6.01Project Delays...... 94
6.02Critical Path...... 95
6.03Float...... 95
6.04Critical Delay...... 95
6.05Noncritical Delay...... 96
6.06Compensable Delay...... 96
6.07Noncompensable/Inexcusable Delay...... 97
6.08Excusable Delay...... 98
6.09Concurrent Delay...... 100
6.10Force Majeure...... 102
6.11Allocation of Delays...... 104
6.12Time and Money Separate...... 104
6.13Disruption...... 105
6.14Delays Due to Added Scope of Work...... 105
6.15Direct Acceleration...... 106
6.16Constructive Acceleration...... 107
6.17Order to Accelerate...... 108
6.18Acceleration Damages...... 109
6.19Liquidated Damages...... 110
6.20Liquidated Damages—Owner Orders Extra Work...... 110
Chapter 6: Delay and Disruption
6.01 Project Delays
Construction projects involve complex coordination and sequencing of numerous work tasks by multiple stakeholders. The coordination and sequencing process, and resulting time required to complete work tasks, can be influenced by events within the control of the parties and by events outside the control of the parties, such as weather and acts of God. When events cause changes to planned work sequences and planned time frames, delays inevitably result. Since essentially all project stakeholders incur time-based costs to complete their respective tasks, delays have a financial impact. When delays occur, it is necessary to determine a number of factors, including (1) which events caused the delay, (2) when the delay started and finished, (3) how much money was incurred as a result of the delay, and (4) whether a specific party is required to pay delay costs.
The task of assigning responsibility for delay can be further complicated when multiple events, caused by multiple stakeholders, cause simultaneous or concurrent delays.
To properly adjudicate delay claims, the jury must be instructed on the concept of construction delay and must be provided with sufficient facts to determine the type of delay, which stakeholders are responsible, which stakeholders were impacted, and the amount of damages reasonably caused by delays.
The process of assigning, allocating, and pricing delays is fact intensive and requires understanding and applying nuanced principles of common-law and contract provisions. Even with delay experts and consultants generating sophisticated trial graphics and testimony, it can be difficult to explain construction delay to a jury. As a result, both clear trial presentation and straightforward jury instructions are extremely important.
6.02 Critical Path
A project’s “critical path” is the longest sequence of related and interdependent construction work tasks within a project schedule. The critical path begins with “project start,” runs through the entire project schedule, and because it is the longest sequence of work tasks, establishes the “project complete” date. Delay to any activity along the critical path will delay overall project completion. Each of the work tasks along the critical path must be performed in a timely fashion; otherwise project completion will be delayed.
6.03 Float
“Float” is the total time, typically measured in calendar days, a scheduled work task can be delayed, or slip in time, before causing a delay to overall project completion. If a scheduled work task contains zero float, the activity cannot slip even one day without causing a delay to overall project completion and is by definition a “critical path work task.” An activity with float can slip in time up to the float value assigned to it before causing a delay to overall project completion.
Comment
Joseph E. Bennett Co., 72-1 B.C.A. (CCH) ¶ 9364, 1972 WL 1134; Weaver-Bailey Contractors Inc. v. United States, 19 Ct. Cl. 474 (1990) (discussing who owns the float); Philip L. Bruner & Patrick J. O’Connor Jr., Bruner & O’Connor on Construction Law§ 15:8 (2014 ed. 2002); U.S. Fid. & Guar. Co. v. Orlando Utils. Comm’n, 564 F. Supp. 962 (M.D. Fla. 1983) (explaining float).
6.04 Critical Delay
In determining whether a delay to an activity caused a delay to the critical path of the project, you must determine to what extent the delayed activity contained float. If there was zero float associated with an activity, a delay to the activity will delay overall project completion.
The contractor is only entitled to additional time for delay if the contractor can prove that events delayed the critical path and caused an extension of overall project completion. Such a delay is called a “critical path delay.”
In order to determine whether a delay was a critical path delay, you must determine which work activities were impacted, how the impacts affected the critical path, and to what extent overall project completion was extended. If you determine that a delay was a critical path delay, then you may award the contractor time or money associated with the delay (as provided in other instructions).
Comment
Youngdale & Sons Constr. Co. v. United States, 27 Fed. Cl. 516 (1993); Howard Contracting Inc. v. G.A. McDonald Constr. Inc., 71 Cal. App. 4th 38, 48 (1998); Fortec Constr. v. United States, 8 Cl. Ct. 490 (1985); Mega Constr. Co. v. United States, 29 Fed. Cl. 396, 424 (1993).
6.05 Noncritical Delay
The contractor is not entitled to additional time or costs for a delay unless the delay was a critical path delay. If you determine that the delay at issue did not impact the completion date, you cannot award the contractor either time or money associated with the delay.
6.06 Compensable Delay
In order to determine whether a contractor is entitled to money associated with a delay, you must determine whether the delay is “compensable.” If a critical path delay was the fault of the owner or its agents, then the delay is called a “compensable delay.” A contractor is entitled to both time and money for a delay that is a compensable delay.
Compensable delays include, for example, delays caused by actions of the owner such as owner-initiated changes in the scope of work, design errors and omissions, or active interference by the owner or its agents.
The contractor bears the burden to demonstrate the extent of the critical path delay, whether a delay is critical, and its impact costs associated with the delay.
Comment
When an equitable adjustment is being sought for government-caused delay, “the contractor has the burden of proving the extent of the delay, that the delay was proximately caused by government action, and that the delay harmed the contractor.” Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc). In some cases, this burden may be met if the contractor proves four elements: the government’s delay was of unreasonable length, the government was the proximate cause of the contractor’s delayed performance, the contractor was injured, and there was no concurrent delay on the part of the contractor. P.J. Dick Inc. v. Principi, 324 F.3d 1364, 1374–75 (Fed. Cir. 2003); CEMS Inc. v. United States, 59 Fed. Cl. 168, 230 (2003). 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. E.g., William F. Klingensmith Inc. v. United States, 731 F.2d 805, 809 (Fed. Cir. 1984).
6.07 Noncompensable/Inexcusable Delay
If a critical path delay was the fault of the contractor or its subcontractors, the contractor is entitled to neither time nor money associated with the delay. This type of delay is called an “inexcusable delay.”
Such delays can result, for example, from contractor-caused poorer-than-expected labor productivity, failure to provide sufficient workers, construction errors, bidding/estimating errors, or contractor-to-subcontractor management/coordination problems.
If you determine that the delay was an inexcusable delay, you cannot award the contractor either time or money associated with the delay.
[If counterclaims:] If you find that the delay was an inexcusable delay, you must award the owner damages associated with the delay.
6.08 Excusable Delay
If a delay was not directly caused by either party and could not have been reasonably avoided, it is called an “excusable delay.” If the contractor can demonstrate that the excusable delay impacted the critical path, the contractor is entitled to additional time to extend overall project completion (equal to the duration of the excusable delay).
The contractor is not entitled to additional money associated with an excusable delay (only a compensable delay). This is because the law only requires the owner to pay the contractor for a delay that was caused by the owner or its agents. Given that an owner does not “cause” an excusable delay, the contractor only receives time for the delay that neither party could have reasonably avoided.
For each day of delay, the jury must determine, based upon the totality of circumstances, whether the contractor proved the delay was excusable. The mere existence of conditions not anticipated by the parties at the time of the contract is not sufficient to excuse a delay unless these circumstances make performance impossible and rise to the level of a “force majeure event” (as defined in another instruction).
Comment
Framlau Corp., ASBCA No. 14479, 71-2 B.C.A. (CCH) ¶ 9082, 1971 WL 1269, at 42,106; Jan R. Smith, Contractor, FAACAP No. 66-21, 65-2 B.C.A. (CCH) ¶ 5306; A. Brindis Co., GSBCA No. 3085, 70-2 B.C.A. (CCH) ¶ 8527, 1970 WL 1366.
When the delay is the result of some action or negligence on the part of the owner, it will generally be found excusable. See, e.g., Exton Drive-In Inc. v. Home Indem. Co., 261 A.2d 319, 323–24 (Pa. 1969) (denying an owner’s claim for delay damages because owner’s interference caused the delay). Courts have also found excusable delay in situations involving extreme amounts of rain, see Azure v. United States, No. 96-5054, 1997 U.S. App. LEXIS 29365, at *8–9 (Fed. Cir. Oct. 24, 1997), and defective plans, seeConti Corp. v. Ohio Dep’t of Admin. Servs., No. 88-14568, 1992 Ohio Misc. LEXIS 77, at *58–59 (Ct. Cl. Nov. 30, 1992).
The cases are generally in accord that most normally occurring conditions, such as difficult but not severe weather patterns, labor difficulties, or difficulties with a subcontractor, generally do not excuse a delay in performance. See Travelers Cas. & Sur. Co. v. Dormitory Auth.-N.Y., 735 F. Supp. 2d 42, 63–64 & n.37 (S.D.N.Y. 2010); McDevitt & St. Co. v. Marriott Corp., 713 F. Supp. 906, 915 (E.D. Va. 1989), aff’d in part and rev’d in part on other grounds, 911 F.2d 723 (4th Cir. 1990); Punton v. Sapp Bros. Constr. Co., 300 P.2d 271, 273–74 (Cal. Dist. Ct. App. 1956); Luria Eng’g Co. v. Aetna Cas. & Sur. Co., 213 A.2d 151, 154–55 (Pa. Super. Ct. 1965). Courts have also rejected excuses relating to failure of a government inspector to notify a contractor of defects. SeeFla. Dep’t of Ins. v. United States, 33 Fed. Cl. 188, 195 (1995), aff’d, 81 F.3d 1093 (Fed. Cir. 1996).
Types of delays that have been deemed to be excusable include the following:
Acts of God. Natural disasters such as earthquakes, tornados, and floods. Keflavik Contractors, 61-2 B.C.A. (CCH) ¶ 3161, 1961 WL 879.
Owner acts. The following owner acts have been deemed to be excusable delays:
failure to make payment without excuse or bona fide payment dispute, Precision Tool Co., 60-2 B.C.A. (CCH) ¶ 2739, 1960 WL 532;
failure to timely approve shop drawings, Sterling Millwrights Inc. v. United States, 26 Cl. Ct. 49 (1992);
improper inspection by owner representatives, Carroll Co., 67-1 B.C.A. (CCH) ¶ 6130, 1967 WL 330;
late, defective, or incorrect owner-furnished material and equipment, Electro Plastic Fabrics, ASBCA No. 14761, 71-2 BCA ¶ 9118, 1971 WL 1275;
defective drawings of specifications, Chaney & James Constr. Co. v. United States, 190 Ct. Cl. 699 (1970);
failure to provide access to site, Bliderman Constr. Co. v. United States, 695 F.2d 552 (Fed. Cir. 1982);
delay in issuing notice to proceed, Excavation-Constr. Inc., 83-1 BCA ¶ 16,293, 1982 WL 7827 (considered constructive suspension);
unreasonable delay in issuing change order, Barnett Brezner, 61-1 BCA ¶ 2895, 1960 WL 687 (considered constructive suspension);
failure to investigate a differing site condition in a timely manner, Larco Painting Co., ASBCA No. 6005, 60-1 BCA ¶ 2655, 1960 WL 479;
direct owner interference with contractor’s work, Ames & Denning Inc., 1962 BCA ¶ 3406, 1962 WL 881.
Labor strikes. If unforeseen. Gilbane Bldg. Co. v. United States, 166 Ct. Cl. 347 (1964).
6.09 Concurrent Delay
When multiple events, caused by multiple stakeholders, impact the project during the same time, it is called a concurrent delay. In this case, the contractor claims that its own delay should be excused because the owner caused a delay to another work task during the same time, and the owner’s delay was concurrent with the contractor’s delay.
To prove that its delay was concurrent, the contractor must demonstrate the following:
(1) Contract performance was delayed by multiple events.
(2) Multiple events caused critical path delays of the project.
(3) Multiple events were attributable to both the contractor and the owner.
(4) It is impossible to allocate critical path delay between the events.
In order for you to find that a delay was concurrent, you must determine that both the owner and the contractor took some action that would have independently caused a critical path delay. In other words, the critical path would have been delayed the same number of days even if the contractor had not caused its delay because the owner was simultaneously causing a critical path delay.
If the contractor can demonstrate that a concurrent critical path delay existed, the contractor is entitled to an extension of time for each day the owner concurrently delayed the critical path (but is not entitled to additional money).
You must, however, consider each day of delay separately. You may find that an owner’s delay was only concurrent with the contractor’s delay for a portion of time. For example, you may determine that the owner’s delay caused seven days of critical path delay and the contractor’s delay caused ten days of critical path delay. In this case, the contractor would be entitled to an extension of time of seven days—the number of days that its critical path delay was concurrent with the owner’s critical path delay.
[In liquidated damages cases:] You cannot assess liquidated damages against the contractor for any day of critical path delay in which the owner caused a critical path delay that was concurrent with the contractor’s critical path delay.
Comment
See Mark Boe, Identifying Concurrent Delay, Cause & Effect, Winter 2004; see also Andrew D. Ness, When the Going Gets Tough—Analyzing Concurrent Delays, available at [or <tps_comment index="19"/tps_comment index="19">?]; George Sollitt Constr. Co. v. United States, 64 Fed. Cl. 229, 238 (2005) (“The exact definition of concurrent delay is not readily apparent from its use in contract law, although it is a term which has both temporal and causation aspects. Concurrent delays affect the same ‘delay period.’ See Tyger Constr. Co. v. United States, 31 Fed. Cl. 177, 259 (1994) (‘In cases of concurrent delay, where both parties contributed significantly to the delay period by separate and distinct actions, justice requires that the cost of the delay be allocated between the two parties proportionally.’). A concurrent delay is also independently sufficient to cause the delay days attributed to that source of delay. See Beauchamp Constr. Co. v. United States, 14 Cl. Ct. 430, 437 (1988) (noting that a concurrent action ‘would have independently generated the delay during the same time period even if it does not predominate over the [G]overnment’s action as the cause of the delay’ (citations omitted)).”); Morganti Nat’l Inc. v. United States, 49 Fed. Cl. 100, 132 (2001), aff’d, 36 F. App’x 452 (Fed. Cir. 2002); see also RP Wallace Inc. v. United States, 63 Fed. Cl. 402, 410 (2004).
Framlau, 71-2 B.C.A. (CCH) ¶ 9082 at 42,106, 1971 WL 1269. (“The Government does not deny that it took some additional time to perform the extra work. It denies the request for an extension of time only on the ground that the work could be performed concurrently with items of uncompleted work under the basic contract. The Government’s position fails to recognize a distinction between requests for time extensions to support claims for relief from assessment of liquidated damages, and to support claims for upward price adjustments. In assessing liquidated damages, a contractor will not be charged for its delays which are concurrent with Government-caused delays. Since the Government directed a change and has assessed liquidated damages, appellant should not be charged for the number of days it took to perform the additional work, even though the work was performed concurrently with other work. On the other hand, appellant may not use these days for computing an equitable adjustment in price for the increased time of performing the contract if the work was performed concurrently with other work required by the contract or during an extended period of performance resulting from delays caused by appellant.”); Jan R. Smith, Contractor, FAACAP No. 66-21, 65-2 B.C.A. (CCH) ¶ 5306; A. Brindis Co., GSBCA No. 3085, 70-2 B.C.A. (CCH) ¶ 8527, 1970 WL 1366.
6.10 Force Majeure
Force majeure is the legal term for “acts of God” or unanticipated events outside the control of either party. Force majeure events include strikes, war, terrorism, fires, flood, or freight embargoes.
If you find that a force majeure event caused a critical path delay, you must determine that the delay is an excusable delay [meaning the contractor is entitled to additional time but is not entitled to additional money].
Severe weather only constitutes a force majeure delay if the weather event is so unusual that the parties could not have anticipated or avoided the delay. Generally, a contractor assumes the risk of adverse weather conditions inherent in the geographical region of the project.
Comment
A typical list of force majeure events is included in the Federal Acquisition Regulations, FAR 52.249-10(b)(1) (2014):
(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.
“It is well settled that the term ‘unusually severe weather does not include any and all weather which prevents work under the contract. The phrase means only that weather surpassing in severity the weather usually encountered or reasonably to be expected in the particular locality during the time of year involved.” Allied Contractors Inc., IBCA No. 265, 1962 BCA ¶ 3501, 1962 WL 9712.
6.11 Allocation of Delays
To recover additional time, the contractor must prove the delay was excusable. To recover additional time and money, the contractor must prove the delay was compensable.
As a result, you must each place each day of delay into one of the following four categories:
(1) the contractor’s fault (non-excusable)
(2) the owner’s fault (compensable)
(3) caused in part by each the owner and the contractor (concurrent)
(4) not either party’s fault (excusable)
You must separately consider each period in which the parties contend a delay occurred.