Who Owns The Float In A Contractors Programme?

By Joseph Bond, Executive Director, Kenzie Consulting
www.kenzieconsulting.com

This month’s question was posed by an architect in Dorset.

Should I include provisions to deal with float in a contract?

Answer:

It is a regular occurrence in construction disputes as to who owns the float in a contractors programme. It is common practice that construction projects follow a critical path process of programming.

The critical path identifies which activities need to be started and finished on a certain date in order not to delay the project.

Float is the amount of time an activity can be delayed beyond the time allocated without causing delay to the whole project, and therefore not an activity on the critical path.

If an activity, however, is delayed beyond its available float time then it will become an item on the critical path.

The dispute often arises that if the contractor has been prudent in allowing float time in the contract for any uncertainty e.g. weather, shortage of materials etc, can the employer utilise this float time for his own benefit?

This may become likely where the delay is caused by the employer for variations, for example.

Contractors frequently include a float period in their programme to be utilised for their own benefit and because of this, the contractor will likely argue that they should stipulate how this is used.

However, the employer would argue that the total float time has been built into the agreed and signed contract, therefore as the employer is paying for this time, it is for the employer to utilise.

This has led to uncertainty as to who owns the float time in a programme.

It is important in these circumstances to first look to the contract as, although unusual, there may be a provision in the contract to settle the argument. This would be the way the Courts would now approach any uncertainty in this area.

The NEC (a family of contracts that facilitates the implementation of sound project management principles and practices as well as defining legal relationships) states that if, for example, the planned completion date is a week earlier than actual contractual completion date the contractor shall keep the benefit of the additional week float.

However, it would be better to belt and brace issues like this in the contract.

This will eradicate all uncertainty as to who owns float time and our advice in to incorporate terms into a contract to this effect to avoid any future conflict.

Do you have a contractual, technical or legal problem?

Or would you simply like to understand a particular issue better?

Would you like independent objective advice?

Therefore, if you have a question regarding any construction law, dispute resolution or quantity surveying matter then email info@modernbuilder.co.uk or joseph.bond@kenzieconsult ing.com and we will publish a response in Modern Builder detailing our advice.

All correspondence will be treated with the utmost confidence.

The content of this article is provided for informational purposes only and does not constitute legal advice. This article is offered only for general informational and educational purposes. It is not offered as and do not constitute legal advice or legal opinions. You should not act or rely on any information contained in this article without first seeking the advice of a solicitor.