5.3.1.4.9 Proving Delays: To CPM or Not CPM, That Is the Question

• Jurisdiction: Arizona

Understanding and analyzing the rights and obligations of parties arising from construction delays, disruptions and the untimely completion of scheduled activities is a complex process which at times is confusing to lawyers, judges, jurors, and even arbitrators. Complicating these tasks is the use of bar charts and critical path analysis (“CPM”) applied to the myriad of construction activities which may have impacted scheduled work activities. Most all court decisions discussing delay claims refer to various “critical path” terminology to analyze these types of claims to determine if the alleged delays impacted the critical path. The common jargon frequently used by the courts in resolving delay claims disputes refer to a computer driven process known as the “Critical Path Methodology.”

“Critical Path Methodology” (CPM) is a term of art for a method of scheduling and administering construction contracts. The Court of Claims has explained that CPM enables contractors performing complex projects to identify a critical path of tasks that must each be completed before work on other tasks can proceed. A delay on the critical path will thus delay the entire project.^[123]

The Arizona Court of Appeals decision in Lambert v. City of Tucson Dept. of Procurement^[124] demonstrates how even the trial court failed to understand the complexities of construction law and its applicability to the inevitable delays and disruptions on a construction project. Until this decision, there was little Arizona legal precedent dealing with construction delays. The Lambert case provides the applicable legal principles and general guidance for Arizona courts when faced with the allocation of risks, and resolving delay disputes, arising from time impacts incurred in a construction project, while leaving some critical questions unanswered.

The importance of the Lambert decision is not the particular factual setting, but rather, its discussion of construction delay legal principles to be applied to government construction project delays. Due to the lack of substantive Arizona law, the court of appeals in Lambert followed the decision in New Pueblo Constructors, Inc. v. State^[125] in looking for guidance in the federal public contract law announced in the decisions of the court of claims and boards of contract appeals. The Lambert court expressly noted:

Under federal law, “[t]he term ‘delay’ implies a stopping or hindrance for some period.” Paul Hardeman, Inc. v. United States, 406 F.2d 1357, 1361, 186 Ct. Cl. 743 (Ct. Cl. 1969). REL, as the contractor justifying untimely performance, had the burden of proving delay and of proving that any delays in performance were...