


Consider this hypothetical discussed in Weaver-Bailey Contractors, Inc. v. U.S., 19 Cl. Ct. 474, 481 (1990) that discusses the concept of total float by using a simple example that may apply to a residential house job:


To reiterate, a critical path activity is one which, if allowed to grow in duration at all, will cause the overall time required to complete the project to increase. By contrast, an activity with float time may grow in duration up to a certain point, without an adverse impact on the time required to complete the project. Consider the example of a contractor who committed himself to building a house, beginning on January 1, 1989. The contractor has determined that he will need one year to complete the job. Pouring the foundation is a critical path activity because any increase in the amount of time required to complete the foundation will cause an increase in the amount of time needed to complete the house; work on the walls, floors, roof, and utilities cannot begin until the foundation is complete.


Suppose that as part of the job, the contractor promised to build a fence along two edges of the property, and that building the fence will take 20 days. No other work depends on the completion of the fence, so delaying work on the fence until December 11, 1989 will not put the contractor in danger of late completion. In other words, building the fence is an activity with a lot of float time. However, float time is never unlimited. If on December 20 the contractor has yet to begin the fence, or if there is more than 11 days’ worth of fencing work to be done as of December 20, then the contractor will not finish the job on time. From the foregoing, one can make the following generalization: regardless of whether an activity is on the critical path of a project, if the time required to complete the activity is greater than the time remaining to complete the project, then project completion will be delayed.


Consider now the effect on our hypothetical contractor if on December 1, before fencing work had begun, the buyer of the house told the contractor that he would like all four sides of the property to be fenced, thereby doubling the fencing work. Clearly the contractor could not complete the entire project by the end of the year, but through no fault of his own. The time required for the fencing portion of the job is now 40 days, and the contractor has only 31 days left.


Many contracts, particularly in the public sector, contain a float-sharing provision that basically says that total float is for the benefit of the project and not for the exclusive benefit of either the owner or the contractor.  There are different ways this can be worded.  Under this float-sharing provision, construction is taken as it occurs such that use of float is typically applied on a first-come first-serve basis provided parties acted in good faith through the use of the float (good faith, obviously, being a relative term).  This obviously can work for or against a party based on when a delay occurs during construction.


There are contracts that include language that provide that float is for the exclusive use and benefit of the owner.  Under such a clause, float is not for the benefit of the contractor to account for contractor-caused delays; rather, it is for the sole use of the owner to apply to delays it may cause.  When I am representing the contractor, I warn them of the risk of this language as it takes away from the anticipated uncertainty that exists in construction, which is why schedules are never written in stone.  Further, if an owner can consume all of the float, it shifts, in my opinion, quite a bit of risk to the contractor since the owner can breach certain time commitments or obligations in the contract under the premise that it was consuming available float.  When I am representing the owner, I generally do not include such a provision as I tend to subscribe more to the presumed equity of a float-sharing provision, as such a provision can certainly benefit an owner with delays that occur early on in the job.


There is also the sentiment that float-sharing provisions, no different than provisions that give the owner exclusive use of float, are equally unfair.  There is an air of truth to this sentiment because a contractor generates the schedule and controls the means and methods of construction.  In doing so, the contractor, through experience, tries to conservatively, but flexibly, account for certain delays it can reasonably anticipate that perhaps would be consumed by float in the schedule.  The contractor cannot reasonably account for owner-caused delays and, in reality, an owner would not want the contractor to do so because there would be a huge time contingency built into the schedule to account for such unknown delays (e.g., is the permit going to be issued on time, is the designer going to promptly respond to RFIs and submittals, is there going to be change orders, is there going to be a design issue, etc).  The owner would never agree to this because it would simply delay the completion date. 


How does your construction contract treat float?  How does it define float?  How does the consumption of float potentially impact your project based on how you scheduled activities through completion of the project? 

