§14.3 Delay

• Jurisdiction: Washington

§14.3 DELAY

This section discusses various types of delay in construction projects and liability associated with delay.

(1) Fundamentals of delay claim analysis

In assessing liability for construction project delays and determining whether a contractor may be entitled to additional time, money, or both, a threshold question that must be answered is whether either party controlled the risk with respect to a schedule-impacting event. The analysis of which party controls the risk requires consideration of numerous factors:

[W]hether either contracting party will be deemed to be in "control" of a time-impacting event requires careful consideration of the "limits of the undertaking" and its express allocation of risk, together with implied allocation arising from common-law principles of foreseeability, legal control, physical control, unavoidable consequences, mitigation, legal impracticability and reasonable care and due diligence.

5 Bruner & O'Connor §15:29. In many instances, "control" of the delay-impacting event may be expressly allocated by contract. A typical example of this can be found in the A201, which provides that the owner is responsible for furnishing information regarding the project's "utility locations" and that the contractor is "entitled to rely on the accuracy of the information" provided by owner. AIA A201-2017 §2.3.4. Under this provision, in most instances, the owner would be responsible for delays occasioned by the risk that it controls, if the information furnished proves to be inaccurate.

A closely related question in determining if a contractor will be entitled to an extension of time, additional money, or both, hinges on whether the delay was foreseeable. See, e.g., V. C. Edwards Contracting Co. v. Port of Tacoma,83 Wn.2d 7, 13, 514 P.2d 1381, 1386 (1973) (applying doctrine of quantum meruit, noting "[t]he critical factor in application of the doctrine is whether the contractor should have discovered or anticipated the changed condition."). When delay is unanticipated and unforeseeable, the logical conclusion to reach is that the contractor did not control the risk. As noted above, whether a delay is foreseeable

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may be impacted by whether the contract provides any indication of who controls the delay.

Perhaps the most important basic concept in delay analysis is that a "delay" is only in fact a delay toward project completion if it has impacted the critical path schedule. The logic behind the requirement that a delay must impact the critical path is that "some delays merely absorb float, and not every delay causes a delay to the critical path." W. Stephen Dale & Robert M. D'Onofrio, Construction Schedule Delays §3:2 (2017). Stated differently a delay in one phase of the work does not always increase the time for total performance. Thus, a task that is not performed within the scheduled time does not give rise to any delay-related claim unless the critical path is impacted.

In proving critical path delays, courts have "expressed a clear preference for critical path schedule analysis." See id. (citing numerous cases from various federal and state jurisdictions). Often critical path schedule analysis is required by contract, and it has become the standard methodology in proving delays. Several of the common critical path methodologies are discussed in §14.5, below. Even in the absence of contractual language or an express statement by a Washington court requiring critical path analysis, a contractor may have a difficult time meeting its burden of proof if critical path analysis is not presented. See Mega Constr. Co. v. United States, 29 Fed. Cl. 396,435 (1993) (rejecting the use of bar charts and opining, "The court cannot rely on assertions of a contractor, not supported by a critical path analysis of the project, to award critical path delay costs.").

Similarly, subcontractors seeking to demonstrate that a contractor is responsible for a delay should demonstrate that critical path delays to the overall project, in turn, delayed the subcontractors' work. See Turner Constr. Co. v. Smithsonian Inst., CBCA 2862,17-1 B.C.A. (CCH) ¶36,739 (Apr. 14, 2017) (opining that subcontractors could be entitled to delay damages if the court found "periods of critical path delay that delayed the work of a particular subcontractor," which required "evidence of delay to activities by the individual subcontractors, not just overall delay to the project.").

That said, particularly given the absence of extensive Washington case law on the subject, there may be a basis to argue that something less than a critical path schedule analysis is required. For instance, when a contractor's own in-project scheduling failures limit the ability to conduct a critical path analysis, subcontractors may have more leeway insofar as what is required to prove the delay. See Mactec, Inc. v. Bechtel Jacobs Co., LLC, 346 F App'x 59 (6th Cir. 2009) (accepting

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a questionable CPM analysis by the subcontractor's expert as the best evidence available under the circumstance). The subcontractor's position that something less than a critical path analysis is required may perhaps be most persuasive when the difficulty proving the subcontractor was delayed by a delay to the critical path schedule is made difficult, impractical, or impossible by the contractor's own scheduling failures.

There may be latitude to argue that, in other circumstances such as the owner assessment of liquidated damages in the face of a contractor's failure to complete work by a contractually specified date, something less than CPM schedule analysis is required. Issues impacting the success of such an argument likely would include the specific contract provisions at issue and the evidence that concurrent delay exists. See, e.g., Appeals of Whitesell-Green, Inc., ASBCA No. 54135, 06-2 B.C.A 1133,323 (June 23, 2006) (discussing burden of proof in assessing liquidated damages, noting if "the government establishes that the contractor was late in completing the contract work by the scheduled contract completion date, and establishes that the assessment of liquidated damages was correctly computed, the government has established a prima facie case," with the burden of showing excusable delay initially shifting to the contractor).

In an unpublished opinion in Washington, Cortinas Painting & Restoration, Inc. v. Corp Inc., 2000 Wn. App. 1068, No. 75728-8-1, 2017 WL 4640326 (Oct. 16, 2017), the court suggested that an "informal analysis" is sufficient to determine whether a contractor has met his or her burden of proof. However, the notion of an "informal analysis" is difficult to reconcile with the evidence rules regarding testimony by experts, which generally require that an expert's testimony be based upon industry-accepted methodology. Moreover, a review of the opinion in Cortinas indicates that the expert witness still used an "as-planned" critical path analysis, and describing such an analysis as "informal" may or may not have been accurate. Further, the appellate court in Cortinas cited to a Tenth Circuit opinion, Morrison Knudsen Corp. v. Fireman's Fund Insurance Co.,175 F.3d 1221, 1233 (10th Cir. 1999), in support of its "informal analysis" belief, but in Morison Knudson the circuit court simply held that the a jury instruction using the informal jargon "critical delay" was acceptable. Therefore, use caution if citing to the unpublished Cortinas opinion in suggesting that an "informal" schedule analysis is admissible as evidence and sufficient to meet the burden of proof.

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(2) Types of delay

A delay represents the time in which some part of the construction project has been extended due to certain circumstances. Delays generally fall into one of three categories:

(1)	Inexcusable delays. "Inexcusable delays" are delays to the critical path caused by the contractor and within its control, or those for which it has contractually agreed to assume responsibility. A contractor is not entitled to any additional time or money for an inexcusable delay. Inexcusable delays may be compensable to the owner and subject the contractor to liquidated damages.
(2)	Compensable delays. A "compensable delay" is a delay to the critical path caused by the owner, under its control, or for which it has contractually agreed to assume responsibility. From the contractor's viewpoint, compensable delays are both excusable, from a time perspective, and compensable, from a cost perspective.
(3)	Excusable delays. When neither party is responsible to the other for delays to the critical path falling outside of the first two categories, the delay is termed an "excusable" delay Excusable delays entitle both contracting parties to a time extension but not additional money.

As discussed throughout §§14.3 and 14.4, below, the foregoing types of delays may be components of a concurrent delay, be subject to apportionment, constitute a suspension of work, or create circumstances that lead to the eventual cause of an acceleration claim.

(a) Inexcusable delays

Inexcusable (or nonexcusable) delays are delays to the critical path caused by the fault or negligence of the contractor or those delays for which the contractor assumes the risk. Inexcusable delays are those for which the contractor is not excused, because they are caused by or attributable to the contractor or circumstances within the contractor's control or because the contractor has contractually agreed to assume the responsibility for them.

A nonexclusive list of inexcusable delays includes defective work, subcontractor- or supplier-caused delays, inadequate skill or labor force, contractor mismanagement, delays in obtaining materials or equipment, and contractor financing problems. See 5 Bruner & O'Connor §15:31. The foregoing events are all typically within the "control" of the contractor, as discussed in §14...