Analyzing Delays

By Joseph P. Dirik

Joe Dirik is a graduate civil engineer and attorney. He is a member of the construction law practice group at the Dallas office of Jenkens & Gilchrist, PC.

Excusable delays are usually identified in a contract and include unreasonably severe weather, owner-caused delays and other events outside the contractor's control. Contractors are generally entitled to time extensions for excusable delays.

Delays are an inevitable part of most construction projects and usually considered excusable and non-excusable.

The burden to prove the number of days requested in an extension usually falls on the contractor. Many contracts require the use of Critical Path Method schedules and spell out how the contractor must calculate and present time-extension requests. A CPM schedule's effectiveness is directly related to the initial detail and effort expended to set up and monitor the schedule. To be effective, the contractor must plan the project from the beginning to ensure the schedule's logic reflects the manner the contractor plans to build the job.

A CPM schedule prepared without involving superintendents and other staff who will be assigned to build the project may be ineffective.

A friend, who previously estimated and managed slip-form projects, always put a lot of effort into planning. He would often prepare a detailed CPM schedule for the estimate and proposal, carefully identifying and planning each pour, associated rebar and formwork activities. He put so much time and effort into the project, even at the bidding stage, that there was little doubt about how he planned to build the project. Because his logic was usually sound, he could easily resolve delay issues with his customer.

Many times extension requests involve the issue of concurrent delays, or delays attributable to the owner and contractor during the same period. In some states, neither party can recover damages. Texas allows a party to recover concurrent delays only if the delays can be apportioned between the parties. Concurrent delays do not need to actually take place at the same time. The party claiming the delay damages must prove a reasonable basis for apportioning the effects of concurrent delays.

Only a delay affecting the critical path qualifies as a concurrent delay. Delays to activities with float cannot, by definition, delay the project.

Does your analysis involve one activity with multiple delays? If so, the CPM schedule should identify the total delay but will be of little use in apportioning potentially concurrent delays. For example, an owner could order a change impacting performance of a scheduled activity, but the contractor could have caused concurrent delays in performing the affected work. In these cases, the facts surrounding the delay will determine the existence and apportionment of any concurrent delays. The schedule analysis will report the total delay.

Does your analysis reveal multiple activities and two or more delays? The key step is to determine whether either delay is affecting the critical path, or both. I worked for a firm involved in the first Contract Appeals Board decision on concurrent delays. Fischbach and Moore International Corp. contracted with the Voice of America to erect 104 steel radio towers in the Philippines and presented a claim for project delay. The VOA placed a hold on work to a particular portion of the towers. In its 1976 decision, the Corps of Engineers Board of Contract Appeals recognized 161 days of total delay and held that 114 days of that period were the government's responsibility. The board examined the suspension's impact on Fischbach's overall progress and concluded that the design change by the government "was solely responsible for the frustration (of the contractors') plan of attack on tower erection." The board determined that the financial difficulties of one of Fischbach's critical subcontractors prevented that subcontractor from performing any effective work, and that this represented a concurrent delay for which no compensation was allowable. The concurrent delay period ended when the contractor cured the subcontractor's problems by taking over the work itself.

Another example: An owner issues design changes to a building's foundation. The order is followed by a delay in the structural steel delivery. The contractor would argue that in the face of a known delay by the owner to the foundation work, the contractor was not concerned with the supplier's delivery slippage. Dependent or independent delays? Cases in other jurisdictions hold that in these situations, the burden shifts to the owner to demonstrate that the contractor's original schedule, which was not followed after an owner-caused delay, could not have been met even if the owner delay had not occurred.