Pradip Mehta

I am in Dispute Resoultion/Claims Analysis/Expert Testimony field. I also served as a Manager of

Project Controls with one of the Owner organization where I was able to convince the Senior
Management to Change the Float Ownership Clause from "for Exclusive Use by Owner" to "Joint
Sharing by Owner and Contractor. I would like to share with you the white paper that I wrote to the
staff members after the change was made in the CPM Scheduling Spec Section of the General
Conditions of the Contract.

"As we begin to implement the Revised Contractor Schedule Specification as distributed by the
Office of the Chief Engineer few weeks ago, I would like to take this opportunity to elaborate on the
legal implications and the underlying rational behind the changes we made on the "float ownership
clause" from exclusive to a joint ownership where the float is available as an expiring resource to all
parties. As a part of this discussion, I would like to share the precedence and the views as set forth
by the various Courts and Board of Appeals on this subject and in the process, hopefully increase the
awareness among our Program and Construction Management community on this complex and
frequently misunderstood and misconceived issue.

One of the most significant development during the 1970s and beyond has been the clear
recognition by the Courts and Board of Appeals that float is an expiring resource available to all the
parties working on the project. Since 1974, decisions by the Courts and Boards have confirmed that
the party who gets to the float first receives the benefit of the float (until the float is actually used up
and the project is delayed). These decisions have included the following cases.

Weaver - Bailey Contractors, Inc v. United States (19, Cl. Ct. 474, 1990)
1975 GSBCA decision, Dawson Cost. Co. (GSBCA No. 3998, 1975)
1987 ASBCA decision, Titan Pacific Const.(ASBCA 19, 626, 1987)
1990 DOT BCA decision, Ealahan Electric Co (DOTBCA No. 1959)

Most Significantly of the above, the Weaver - Bailey Contractors, Inc v. United States decision in
1990 by the chief judge of the claim court removes any doubt that may have existed about the
availability of the float, as an expiring resource, to the parties to the project as long as they act in a
reasonable manner. The court in this case totally rejected the Government's (Owner) argument that
the contractor's failure to prosecute the work during earlier time frames when the float was
available excused the government from its responsibilities for changes resulting from increases in
excavation required later in the project after the float has expired.

In the Titan Pacific Construction Corp case, the Board recognized that the issue is not who utilizes
the float, but who is responsible for delay that impacts activities on the critrical path or for delays to
activities to the point they become critical and impact the project.The board in Titan found that
change orders were a basis for time extensions, even though activities impacted by changes were
not originally on the critical path to completion. The Board reasoned that since the allotted float
time was expanded and when the change orders were issued the activities affected by the change at
that time had become critical.

In fact, what all the decisions above are telling us that in CPM analysis for delays, fact finders must
take the project as they find it at the time that the delay is occurring. Thus, if a delay occurs when
the project still has significant float available on the activities delayed, no delay to the entire project
is encountered and the party responsible for the delay is not going to be charged for extending a
project duration. If, however, the delay pushes the activity onto the critical path and the entire
project is extended, the party responsible for that particular delay will be held to have proximately
caused delays to the project.

Notwithstanding the legal implications of float utilization as explained above, on a pragmatic note, it
is a good practice to recognize that float exists for the benefit of all participants. Judicious use of
float arising from the necessity creates a harmonious atmosphere. Allowing party whose function is
in jeopardy to use some float can only increase the desire to complete work in a timely fashion.

If you have any questions or need additional information on this subject, please feel free to contact
me"