Not all delay caused by a contractor or subcontractor leads to the recovery of compensable delay damages. A party is liable for delay only if the overall project completion is extended, thereby increasing the cost of construction. The “critical path” of a schedule is that ever-changing line of inter-related construction activities that will affect the number of days required for project completion.
This leads to a question: Must a party claiming delay damages always present expert critical path method analysis in support of its claim? A federal court recently answered this question in the negative, while acknowledging that appellate courts have praised CPM analysis as the most accurate calculation of delay.
The other case reported in this issue involves preparatory work performed by a contractor prior to the government’s issuance of notice to proceed. Standard contract language prohibits incurring costs prior to notice. But once the government terminated the contract for convenience, the termination clause superseded and enabled the contractor to recover reasonable preparatory costs even though notice to proceed was never issued.