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Understanding the Critical Path – Change Orders

The Critical Path is a construction law concept rooted in the proper scheduling and administration of construction projects.  A critical path schedules a set of project activities and is commonly used during the construction process to manage the progress of the project. Generally, the critical path lists (1) all activities required to complete the project, (2) the expected timeframe for the activity and (3) how one activity depends on another. Any delay of an activity on the critical path can directly impact the project completion. Michael L. Feinstein, P.A. is the premier Ft. Lauderdale construction lawyer who can review contracts to ensure critical path concepts are adequately and accurately contained in the contract. A failure to include critical path provisions can dramatically impact the parties’ position should delay in the project arise.

Why Critical Path Provisions are Necessary

All construction projects start with a scope of work.  The scope of work is then used to create a construction contract with both price and schedule terms.  Whether the contract is a fixed rate, a time and materials, or a cost-plus basis, the contract was drafted based on the scope of work proposed by the owner.  However, most construction projects have some changes along the way; and these changes impact both the price and the schedule.  Florida law provides that a customer is required to pay the reasonable costs for change orders, in addition to the amount agreement upon in the original contract.  But the question becomes, what happens when a change order causes delay? Michael L. Feinstein, P.A. your Fort Lauderdale construction attorney can answer the question and help you avoid problems when delays arise.

In order for a contractor or owner to claim delay damages due to change orders, they must show that delays impacted the critical path of the project. Delay alone, “[i]s not enough…there must be delay of an activity on the critical path for there to be project, or compensable, delay.” Mega Const. Co.. Inc. v. United States. 29 Fed. Cl. 396, 424-425 (Fed. Cl. 1993).  The policy behind this rule is that not all delays result in an increase in the time necessary to complete the project.  In reviewing delays, it is important to consult a construction lawyer who can analyze the delay and whether it impacted the critical path.

In G.M. Shupe. Inc. v. United States. 5 Cl.Ct. 662, 728 (1984), the court discussed delay and the critical path:

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. Id.

Thus, a “delay which does not affect the timely completion of the job (critical path) will not be compensable unless it amounts to a separate interference which can be shown to increase discrete costs” 8 Fla. Prac., Constr. Law Manual § 13:9 (2011-2012 Ed.).  The Ft. Lauderdale construction lawyers at Michael L. Feinstein, P.A. have substantial knowledge, skill, and experience in addressing and handling construction delay claims.

Where an owner or subcontractor causes delays, our knowledgeable construction law attorneys can help in addressing the delay, and attempting to avoid critical path disruptions.  If the project has already been completed, but the delay in completion has caused damage, contact us today to discuss.