A critical path method schedule has long been a fundamental tool not only for scheduling and managing work, but also for supporting claims for delay damages. An analysis of these schedules can isolate activity delay that affected overall project completion. Once such a delay is identified, the cause of the delay can be established. But is critical path analysis always a prerequisite to recovery of delay damages? A federal appeals court recently answered in the negative.

A contractor supported its delay claim with expert testimony from a scheduling witness. The expert presented a baseline, as-planned schedule he prepared. It did not distinguish critical path activities from activities not on the critical path. The expert testified that in his experience on similar projects, nearly all activities were on or near the critical path. The “float” in the contractor’s schedule was negligible. A federal court judge admitted this testimony, the contractor prevailed in its delay claim, and a federal appellate court affirmed the judgment.

Other cases this month involved buried metal objects and the ability to reach a performance bond. The metal objects were disclosed in the contract documents so they did not constitute a differing site condition. The contractor’s concerns regarding the true nature of the objects were self-imposed. And, a formal termination for default was not required to recover against the performance bond; only a declaration of default to the surety.