Claims and Disputes 331
Contractor 1. Noncompliance with specifications
2. Schedule updates not done
3. Reluctance to cooperate and
coordinate
4. Failure to meet milestone dates
5. Not following permit requirements
Compensable versus Noncompensable
Delays
A delay that is considered compensable is one where the
owner has failed to meet an obligation stated or implied in
the construction contract. If a delay is considered com-
pensable, the owner must grant a time extension and reim-
burse the contractor for the increased cost caused by the
delay. If a contractor experiences concurrent delays where
one is compensable and the other is merely excusable, no
compensation is allowed. Similarly, on concurrent delays
where one is caused by the contractor and the other by the
owner, the delay is considered neither excusable nor com-
pensable to the extent of the overlap or concurrency
[Appeal of Rivera General Contracting, ASBCA No. 25888
(April 30, 1985)]. It should be stressed that these defini-
tions are general in nature. The parties have great latitude
to contractually determine whether or not the contractor
will be entitled to additional compensation, an extension
of time, or nothing at all.
If an event delays an activity on the critical path, the
project completion date will be delayed. To avoid delay, it is
necessary to accelerate the performance of a subsequent crit-
ical activity or adjust the sequence of work activities to com-
pensate for the delay. If a delay occurs to an activity not on
the critical path, however, the impact is cushioned by the
available free-float time. Delays to a noncritical activity,
which do not exceed the amount of free-float for that activ-
ity, will not result in a delay to the completion date of a pro-
ject. If, however, a delay to a noncritical activity directly
caused an increase in the contractors costs, such costs may
be recovered by the contractor if the delay was the owners
responsibility. This, of course, is a matter requiring very clear
proof to overcome the presumption that delays to noncriti-
cal activities do not result in delay-related costs. Although an
owner-caused delay to a noncritical activity that used only
free-float time may not be a justification for an extension of
time, such delays may still be compensable when they cause
the contractor to accelerate the work, cause inefficiency or
disruption, or delay some specific activity and thus cause
extended costs, such as cost of equipment rental. In addition,
such delay is not necessarily measured from the time that the
contract documents required the project to be completed,
but rather from the time that the contractor could have
completed the project, from a completion date earlier than
the one indicated in the contract documents [Metropolitan
Paving Co. v. United States, 325 F.2d 241 (1963)]. The most
valuable tools for the defense of a claim are properly pre-
pared CPM schedules.
Delays are the most prevalent problem on construction
projects. A variety of factors in an ongoing project can lead
to a delay. Typical types of delays that might be caused by an
owner include the following:
1. Late approval of shop drawings and samples
2. Late approval of laboratory tests
3. Delays in answers to field inquiries by the contractor
4. Changes in the contractors method of doing the work
5. Variation in estimated quantities
6. Interference with the contractor during construction
7. Owner-caused schedule changes
8. Design changes
9. Changes in inspection level
10. Failure to provide for site access
11. Lack of required rights-of-way
12. Interference by other contractors or owners forces
A contractor may jeopardize its claim, however, by
being the cause of nonexcusable delays of its own. Such
delays are frequently the result of any of the following
causes:
1. Late submittal of shop drawings
2. Late procurement of materials or equipment
3. Insufficient personnel
4. Unqualified personnel
5. Inadequate coordination of subcontractors or other
contractors
6. Subcontractor delays
7. Late response to owner and architect/engineer inquiries
8. Construction not conforming to contract requirements,
making repeated reworking necessary
Attendance at Site Visit
From time to time, owners and architect/engineers feel that
they will better protect the owners interests by requiring all
bidders to attend a prebid site visit. This is obviously based
upon the presumption that the contractor might have a
stronger claim for differing site conditions if he or she failed
to attend a scheduled prebid site tour. However, it appears
that the owner may not be as vulnerable as at first thought.
In a 1986 case, the Comptroller General ruled that a con-
tractors failure to attend a prebid site visit is not a valid rea-
son to reject an otherwise acceptable low bid [Matter of
Arrowhead Construction, Inc., Comp. Gen. No. B-220386
(January 8, 1986)].
In the subject case, the government requested bids for
construction of a paint booth. The Notice Inviting Bids
required all bidders to attend a site visit on a designated date.
When the government announced its intention to award the
contract to a bidder that did not attend the site visit, the