Government Contracting Database
The critical path is the longest series of activities in the schedule for performance of the project. Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-2 BCA 17,492 (1984). An item of work not on the critical path may be completed later than its scheduled time without affecting completion of the project unless the non-critical activity exceeds its “float.” Montgomery-Ross-Fisher, Inc., 84-2 BCA 17,492. Thus, items of work not originally on the critical path can get on the critical path where there is a delay that uses up all of its float. Appeal of Utley-James, Inc., GSBCA No. 5370, 85-1 B.C.A. (CCH) ¶ 17816 (Dec. 21, 1984). The critical path may, therefore, change during the course of a project. Sterling Millwrights, Inc. v. United States, 26 Cl. Ct. 49, 74 (1992). In addition, there may be several critical activities to a project, some running throughout the entire project and others becoming critical at different stages in the life of the project.
“Float” or slack is defined as the amount of time between the early start date, and the late finish date of any of the activities in a Network Analysis System schedule. Float or slack time is not time for the exclusive use of or benefit of either the government or the Contractor. Extensions of time for performance required under the GENERAL PROVISIONS entitled ‘Changes,’ ‘Differing Site Conditions,’ ‘Termination for Default Damages, Delay Time Extensions’ or ‘Suspension of Work,’ will be granted only to the extent that equitable time adjustments for the activity or activities affected exceed the total float or slack at the time Notice to Proceed was issued for the change.
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. If work on the critical path was delayed, then the eventual completion date of the project was delayed. Delay involving work not on the critical path generally had no impact on the eventual completion date of the project. K-Con Bldg. Sys., Inc. v. United States, 115 Fed. Cl. 558, 574 (2014) (citing Sauer Inc. v Danzig, 224 F.3d 1340, 1345 (Fed. Cir. 2000)); Kelso v. Kirk Bros. Mechanical Contractors, Inc., 16 F.3d 1173, 1177 (Fed. Cir. 1994) (citing G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 728 (1984)); and see also J.A. Jones Constr. Co., ENG BCA No. 6252, 97-1 B.C.A. ¶ 28,918 at 144,168 (“To be compensable, Government-caused delay, if any, must interfere with the project’s critical path, i.e. extend completion of the project”). Furthermore, proof that the government “was the ‘sole proximate cause’ of the delay” entails proof “that no concurrent cause would have equally delayed the contract regardless of the Government’s action or inaction.” GASA, Inc. v. United States, 79 Fed. Cl. 325, 368 (2007) (quoting Merritt-Chapman & Scott Corp. v. United States, 208 Ct. Cl. 639, 650, 528 F.2d 1392, 1397 (1976)). If it is equally plausible that acts for which the government is not responsible caused delay, neither party can recover damages “unless there is in the proof a clear apportionment of the delay and expense attributable to each.” MW Builders, Inc. v. United States, 134 Fed. Cl. 469, 508 (2017), reconsideration denied, 136 Fed. Cl. 584 (2018) (quoting T. Brown Constructors, Inc. v. Pena, 132 F.3d 724, 734 (Fed. Cir. 1997); William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed. Cir. 1984).
Updated: June 7, 2018