Considerations for Justifying Contractor Pacing Arguments

This is the second post in a two-part series that discusses considerations for justifying contractor pacing arguments. The series defines contractor pacing, direct and indirect pacing, and elements needed to justify contractor pacing arguments when trying to prove excusable and/or compensable delay.

A contractor’s decision to pace work when faced with an owner-caused critical path delay can be a smart business decision. However, in the context of concurrent delay, a contractor must substantiate its choice to pace work and provide notice to the owner that it intends to pace certain work. Contractors have won pacing arguments in support of excusable and compensable delay claims in the following court rulings:

• A contractor did not have a duty to hurry up and wait during an owner-caused critical path delay due to defective design.¹
• A contractor was not required to move quickly to complete parallel work when impacted by an owner-caused critical path access delay.²
• A contractor’s justification for pacing of non-critical work was upheld, and its pacing delay was said to be wrongly classified as offsetting concurrent contractor-caused delay to a dominating owner-caused design delay to the critical path.³

Although construction contract documents rarely specify contractor pacing obligations, many contract requirements will likely provide guidance and direction. A contractor must be aware of contract delay requirements that are typically found in the following contract provisions:

1. Scheduling specifications;
2. Project schedule modifications;
3. Owner-requested change orders;
4. Contractor-requested change orders;
5. Notice prerequisites;
6. Weather delays;
7. Force majeure conditions;
8. Schedule recovery responsibilities; and
9. Extension of time and compensable delay requirements.

A contractor pacing argument can be a hard sell. Owners are unwilling to accept contractor pacing arguments without concrete support that the owner caused a parallel critical path delay and notice by the contractor to the owner that it intends to pace certain work. A contractor can improve its chances of a successful pacing argument by following these industry best practices:⁴

1. Provide contemporaneous proof that a concurrent, owner-caused delay impacted the driving critical path;
2. Show that the contractor was able to continue work at its planned rate of performance;
3. Furnish contemporaneous documentation regarding a contractor’s decision to slow down or pace its work due to the owner’s concurrent critical path delay; and
4. Give timely written notice to the owner of the contractor’s intent to pace certain work.

¹    CER, Inc., 96-1 BCA ¶ 28,029 (1995).

²    John Driggs Co., ENGBCA Nos. 4926, 5061 & 5081, 87-2 BCA ¶ 19,833 1987.

³    Calumet Constr. Corp. v. Metropolitan Sanitary Dist., 178 Ill. App. 3d 415, 533 N.E.2d 453 (1988).

⁴    AACE^® International Recommended Practice 29R-03, “Forensic Schedule Analysis,” 2011, pp. 112–113 of 134.

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