How about looking at the problem this way:

Site A was delayed by an employer event by 20 days and an extension of time issued. The new Contract Date, for both sites is +20 days.

Then Site B is not reprogrammed to ‘pace’ Site A but suffers a contractor culpable delay of 20 days (say the failure of a piece of plant or whatever).

So far so good, no problem, no bad faith and so on.

Now, if the employer sticks in the variation for Site B then that variation will cause Site B Contract Date, and the project in general, to be +20 +10.

I think the contractor in this case was being ‘canny’ but unless there is anything untoward in the contract then I think this is a prime example of claimsmanship for which there is no remedy. There as been talk of ‘approved’ programmes but, unless I am mistaken, in most UK contracts at least, the programme is not a contract document and there is not compulsion for the contractor to work to anything other than the Completion Date.

I am trying to judge the way the wind is blowing with regard to Time Impact Analysis at the moment so don’t shoot me down if you are of the opinion that it has had its day. But we should strive to assess delays and their effects at the time they happen and taking account of the status of the project at that time – warts and all. If the contractor was ahead of programme on Site A when the initial employer event impacted there would be no worries about whether the employer should or should not be able to use that extra generated float to reduce the potential effects of the delaying event.

I think the contractor was sneaky in what he did but could not foretell at the time he ‘paced’ Site B that the further delaying event would occur. Hindsight is a fantastic thing but I think it is okay for him to have had the expectation that there would not be any more delays (otherwise we would all need to put some contingency float in just in case). I also assume that it was commercially sensible for the contractor to ‘pace’ the sites (or why would he do that) and would we deny anyone the right to do that or should we expect them to make progress just for the sake of it.

Regularly and diligently also, I believe, should be measured in relation to achieving the Completion Date, not finishing early as would have been the case if the original programme was maintained.

Andrew rasied a point here that I cant find an answer to
Was there two completion dates and possibly in turn was there LDs on each date?
This is pretty important.
I am also at a loss as to how the Client signed off on a programme that had 20 days of negative float.
Was he awarding and extension?
Did he ever award and extension.
I feel that before we get into discussions about float and drag and pacing its very important to understand the obligations regarding completion.
I feel we need some of the above questions answered or we are assuming too much
Cive

Iftikhar,

If that is correct, then we are in violent agreement. :)

Maybe I’m just overlooking something (I’m getting old and slow and blind!), but from reading Mark’s posts, it’s not clear to me that the customer DID approve the changes on Path B. I think that’s where the issue of "who gets to use the float first" comes in.

This is clearly the nub of the issue. If the customer did NOT explicitly approve the changes ("pacing") of the schedule in Path B, then it seems to me that the contractor is at fault. If the customer did, then not.

"Believing that the delay was indeed caused by the employer, a contractor asks the employer for any additional costs associated with activities’ acceleration, a request that gets rejected. This causes the contractor to keep working with normal resource levels. This is probably what happened in case of the subject project."

Iftikhar, I think you’re right on the money here! The problem, however, lies not with project management, but with the way we write contracts. Most project contracts are simply not written in a way that tends to lead to a win-win result. All too often, what is good for the customer and what is good for the contractor are at odds.

In general, the customer wants the project finished as early as possible, and it can be worth a substantial amount to him for each week by which the schedule can be shortened (this is DRAG Cost). But shortening the schedule can have all manner of negative implications for the contractor (greater resource usage and cost, greater labour force volatility, sooner need to find other projects to utilize resources and continue cash flow, etc.)

The only way that a contractor will make such schedule-shortening decisions is if some of the benefit of the shorter project to the customer will accrue to him. This is indeed sometimes written into contracts as an early delivery incentive. But not often enough, and frequently the incentive amounts are inadequate to offset the negatives from the contractor’s viewpoint.

The idea of using DRAG as an additional parameter to focus attention on CP is an interesting one. It basically draws attention of schedulers towards "optimizing the schedule" and the project total cost versus total time curve.

However, even when a PM realizes the importance of crashing activities to reduce the project duration, he is not inclined to carry it out because of lingering final decision on EOT entitlement. Believing that the delay was indeed caused by the employer, a contractor asks the employer for any additional costs associated with activities’ acceleration, a request that gets rejected. This causes the contractor to keep working with normal resource levels. This is probably what happened in case of the subject project.

Dear Mark,

If you want to prove that the contractor’s baseline for path B was inadequate, you would have to either develop a detailed baseline yourself (that substantiates your belief) or ask the contractor for Amplified Baseline schedule for path B. Using that amplified baseline, you would be able to point out specific scheduling deficiencies.

If the contractor continued to use up float on path B which had not been awarded to him, he was probably doing so under the belief that he would be awarded the EOT finally probably through arbitrtion etc. But, that should not be your concern.

Mark,

I’m in agreement with Kinley. The contractor has to justify his adjustment of his activities, otherwise ignore them and work from the original sequence when working out any EoT.

Aslo check whether the original completion date was global or two dates given, even though they were the same date, individually for each section. I’m guessing one global date was given but if not you may be able to view each section seperately.

Mark

The contractor should be asked to provide valid justification for any changes to the sequence and timing of the works in order to prevent the situation you describe.

The contract may contain an express term requiring the contractor to proceed regularly and diligently with the work and this could possibly be used to prevent him pacing the non-critical works.

If the employer can demonstrate that he has suffered a loss as a result of the contractor breaching this contract term then he will be entitled to make a claim for the resultant damages.

You say that you consider the float is available to who ever uses it first, but this is subject to it being used in "good faith", at least I believe that is how it is dealt with by the US courts. This would prevent the contractor doing as you describe and reducing the float of the non-critical work.

Hi Mark

Does your contract deal expressly with ownership of float? Did the Employer approve the revised programme, is he required to under the terms of the contract?
Was the first delay an Employer’s delay?


Stretching the duration of non-critical works to fill float created by an Employer’s critical delay is very common and is known as "pacing". The use of the float by the Contractor in this way is generally allowed, subject to express contract terms stating otherwise.

However, it is important to investigate whether the contractor is actually pacing or was in concurrent delay, as this will generally affect his entitlement to prolongation costs.