In construction it is common to have arguments in disputes over entitlement to an Extension of Time (EOT) between the Contractor and the Employer and to who owns the float in the project programme.
The term “float” itself, is commonly misunderstood. The Society of Construction Law (SCL) Protocol (see Guidance Section 1.3.2) defines float as “…the amount of time by which an activity or group of activities may be shifted in time without causing Delay to Completion.”
The contract documents give the Contractor ownership of the means and methods in how to construct the works and this means that the Contractor controls the float in the creation of the original project programme. As in the Contractor decides how the works are to be executed and how much float each and every activity has when constructing the project programme. Contractors often argue on the basis that they ‘own’ the float as it is they who constructed the programme.
The SCL states that; “…[W]here the wording of the EOT clause in a contract is such that an EOT is only granted if the Employer Delays delay completion beyond the contract completion date, then the likely effect of that wording is that total float has to be used up before an EOT will be due. If the wording of the EOT clause is such that an EOT will be due whenever the Employer Delay makes the Contractor’s planned completion date later than it would have been if it were not for that delay, then total float will probably not be available for the benefit of the Employer in the event of Employer Delay.”
If any delay occurs to the Contractor’s works, for which the Contractor is not responsible, this may result in the Contractor claiming for an EOT, even if such delay does not cause any delay to the contract completion date.
In such claims made by the Contractor, the Employer’s natural argument is that there is no EOT entitlement due to the contract completion date not being impacted by such a delay and that it is only the float that has been used, thereby saying that it is the project not the Contractor, that ‘owns’ the float.
CONCLUSION
It should be made clear that one should read the contract and see how this issue is addressed. The term float is not commonly found in any standard forms of contract. From the SCL’s approach above, if the contract has not made it clear in how float should be dealt with, then the Employer’s delay has to be critical and requires it to impact the contract completion date, before an EOT would become due to the Contractor. This results in float not belonging to either the Employer or the Contractor, rather to the project itself, unless there is an express provision in the contract to the contrary.
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