Twelve Days of Owner Delay, Eight of Concurrency, and Nine of Rain
Rio Puerco Constructors is 95 days into a 180-calendar-day NMDOT bridge rehabilitation contract with liquidated damages of $1,500 per calendar day. The approved baseline CPM shows four days of total float on the deck-pour activity, which controls completion.
Three things happen. (1) The owner's testing lab takes 12 days to approve the mix design, delaying the deck pour. (2) The contractor's only concrete pump fails, and the replacement takes eight days to arrive; all eight days fall inside the same 12-day window. (3) Summer rain shuts the site for nine days, against the five days of weather the contract's time analysis assumed; the rain falls on the controlling path.
The contractor submits a 29-day time extension request (12 + 8 + 9) with no schedule update and no daily records, only a narrative letter. The owner's engineer replies that "concurrent delay is the contractor's risk" and offers five days. The contractor finishes 19 days after the contract completion date.
1. Calculate the contractor's actual time-extension entitlement, day by day.
Read the worked answer
Owner delay - 12 days, but only 8 days of project time. The approved baseline carried four days of total float on the deck pour, and float belongs to the project, not to either party. The first four days of owner delay consumed float and delayed nothing; days 5 through 12 pushed completion. Entitlement: 8 days.
Pump failure - 8 days, entitlement zero. All eight days overlap with the owner-caused delay window, and on those days the project was already delayed by an owner event. The contractor cannot recover time for a delay that is not causing additional project delay; concurrency cuts against whoever is seeking relief.
Rain - 9 days lost, 5 assumed, 4 excusable. The contract's time analysis already absorbed the first five rain days. Only the four days beyond the normal allowance are excusable, and only because they fall on the controlling path. Entitlement: 4 days.
Total entitlement: 8 + 4 = 12 calendar days. The contractor's 29-day request fails because it double-counts concurrent days and counts weather days the contract already priced.
Liquidated damages: the project finished 19 days late. After a 12-day extension, 7 days are unexcused. 7 × $1,500 = $10,500 assessed against the contractor.
2. Is the engineer's statement that "concurrent delay is the contractor's risk" correct? Explain how float and concurrency should be handled in the schedule update.
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Half right, and the half that is wrong matters. Correct part: when two delays run on the same critical days, one is a contractor-caused delay, the contractor cannot demand an extension for those days - the owner is not obligated to compensate time for a delay it did not uniquely cause. That is exactly why the eight pump days produce nothing here.
Wrong part: the engineer's phrasing suggests the entire overlap period is the contractor's risk, which would extinguish the owner's own eight days of critical delay. Concurrency does not erase the owner's delay; it simply means the contractor cannot double-recover. If the contractor presses the point, the correct treatment is to time-impact each event separately and then merge the resulting fragnets: the owner event still yields eight days of critical delay that the contractor did not cause.
The schedule update should show: a separate fragnet for the lab approval, a separate fragnet for the pump outage, and a separate fragnet for the rain days beyond the allowance; each inserted into the then-current update, not the baseline; and a merged as-built showing which event actually drove completion on each day. The absence of an update is the contractor's biggest procedural failure here - a narrative letter with no CPM support lets the owner characterize all 19 days as contractor risk.
3. What should the contractor have done differently during those 95 days to protect the 12 days it was entitled to?
Read the worked answer
Document contemporaneously, update monthly, and notice in writing.
- Daily records: weather logs, manpower and equipment counts, photographs of the idle pump, and the lab's dated approval request and response. The rain days are only excusable to the extent the contractor can prove the site was actually unworkable and that the work was on the controlling path.
- Written notice: most public works specifications require notice of a delay-causing event within a short window (commonly 7 to 14 days) or the claim is waived. A letter at day 140 is worth very little.
- Monthly schedule updates: each update re-sequences remaining work and re-computes float. This is how the contractor demonstrates that the owner's lab consumed four days of float and then drove the job, and that the pump outage occurred in an already-delayed window rather than as an independent critical event.
- Segregate the causes: do not let a single narrative blend owner, contractor, and weather events - that is what invited the engineer's blanket concurrency argument.
- Preserve the acceleration issue: if the owner's engineer demands the original completion date after an excusable delay, that is a constructive acceleration claim, and it needs to be raised in writing at the time, not at closeout.
Liquidated damages of $1,500 per day are small enough that owners will press them; the only defense is a documented, updated CPM showing who owned each day.