The previous article on the subject of float (see Issue 12 - Spring 1994) addressed the question of the ownership of f/oat and elaborated on the definitions of the various types of float. This article will address firstly the issue of a contractor's entitlement to time followed by the effect of delay on critical and non-critical work.

THE CONTRACTOR'S ENTITLEMENT.

Under most standard forms of contract, unless expressly directed otherwise, the contractor is free to organise his works in whatever way he wishes providing that he proceeds with reasonable diligence and is, at any time, capable of meeting the contract completion date. There is an obligation on the employer to allow the contractor the time to carry out the works. An extended view of this is expressed in the dicta of Vaughan Williams LJ in Wells v Army & Navy Co-operative Society (1903) as:

"If in the contract one finds the time limited within which the builder is to do the work, that means, not only that he is to do it within that time, hut it means also that he is to have that time within which to do it…"

Although there is an implication in the above that the contractor is entitled to complete the works earlier than the completion date, he does not have a right to do so (and there is no obligation on the employer to facilitate early completion). In programming terms this means that the contractor is at liberty to programme his works so as to achieve early completion i.e. to build 'float' into his programme.

As mentioned in the lead article of the previous Digest, some contractors attempt to do this and, incredible as it may seem, it is in the mistaken belief that, in the event of delay occurring which uses up the project float which they have created (but which does not cause completion to be delayed), they will be entitled to an extension of time.

The fact is that, in such circumstances, not only are they not entitled to an extension, they simply don't need one. An extension of time is only necessary when the completion of the works is delayed or is likely to be delayed beyond the contract completion date and only then if the delay is caused by the employer. In any event, the purpose of an extension of time, to quote Mr.Donald Keating Q.C. who says in his work on Building Contracts 5th Edn. at p233, is:-

"…wholly or partially as a defence to a claim for liquidated damages from the original completion date."

and damages would only be levied by the employer in the event that the contract completion date was not achieved by the contractor.

In the previous issue Roger Trett posed the following question - "If an employer causes delay to a programme of a duration less than the float on the programme and then the contractor causes further delay in the execution of the works which results in the programme finishing after the contract completion date, is there any entitlement to extension of time. If so, what would the contractor's entitlement be?"

In these particular circumstances the contractor would, in my opinion, be entitled to an extension of time for the period from contract completion to actual completion (for the purposes of negation of damages) but would not be entitled to reimbursement of associated loss and/or expense.

THE EFFECT OF DELAY

In most construction project programmes there is a 'critical path' which can perhaps be better understood by reference to its original name of 'Longest Irreducible Sequence of Events'. Any delay to an event which is part of that path or sequence will result in delay to the whole and, in such circumstances, a contractor may be entitled to an extension of time provided, of course, that the delay was caused by the employer and that the true criticality of the delayed event can be supported by proper analysis.

In the instance of delay being caused to non-critical events the situation is a little less clear cut. All too often, in claim submissions, we see selective analyses where the claimant has attempted to demonstrate the effect of delay only on the critical path activities by reasoning that delay to non-critical activities does not affect completion if there is also delay to critical activities. What is being ignored is that non-critical activities can become critical if the duration of the delay is greater than the duration of the float. By failing to demonstrate the effects of all delays to activities, whether critical or not, the claimant is risking the complete failure of the claim.