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In a fixed price construction contract procured via FAR Part 15 procedures, who owns the float in the schedule? The contractor's schedule submitted after award and accepted by the government showed an early completion date for the work. The contractor maintains that they own the float in the schedule, meaning that time between their planned completion date and the completion date of the contract.

A little internet research tells me that the commercial market place has three schools of thought: 1. The contractor owns the flow; 2. the owner owns the float; and 3. the project owns the float.

I did not readily find a discussion of float on federal contracts, but my guess is that the owner (government) owns the float and that the contract completion date or period of performance (POP) would not be extended until the critical path of the accepted schedule exceeds the contract completion data or POP, provided the delay is an excusable delay or the government-requested changes impact the critical path.

If anyone has experience with this or thoughts on the matter, please share.

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Your research shows the three schools of thought. You will find cases where the facts resulted in decisions following all three schools of thought. There is no absolute answer; rather, the answer in any particular case depends on the facts of that case.

Anyone errs who walks into a construction contract with a preconceived notion that its side will always owns whatever float arises.

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I believe that you aren't with DoD. The guide spec for DoD construction contracts states that neither party owns the float. Having said that, I teach and I believe that our scheduling class instructors teach to not accept or approve a progress schedule or a contract proposal that shows planned completion shorter than the required contract completion period.

For RFPs, I have taught to include language to that effect and have encouraged allowing the proposers to propose the required completion period and to require that their proposed schedule match the required contract duration.

Gotta take the dog out. Will explain later.

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There are volumes of cases concerning schedule and time delay disputes. Each year I used to receive a book length update for the previous year's cases in courts or Boards.

When the proposer or contractor indicates up front that it intends to complete the project in a shorter amount of time than the required completion period or date, it is setting the owner up for possible delay damages and possibly a time extension, if any delay to that stated completion period can be attributed to the government - sometimes even when the short schedule is unrealistic. Now, if the contractor falls behind its own schedule, it isn't contractually required to complete the project any sooner than the contracts required completion date based upon the "required contract period".

So, it's essentially a one way advantage when the contractor does this.

Don't approve a progress schedule that is shorter than the required contract duration. Better yet, state that in your IFB or RFP.

Better yet, do that and clearly state in the RFP that not only will you not consider a schedule shorter as a strength or advantage, that it will be considered a disadvantage or better yet state that it will be a deficiency.

Better yet, state all that and also allow the proposers on RFP's to propose the required completion date and make them match their schedule to the proposed contract duration.

Better yet, state all that and that both parties will consider that the contract price is based upon the required completion period, not a shorter schedule.

I have some copies of protests that were upheld at least in part where the government provided additional consideration in the trade off decision for proposed schedules that were shorter than the required contract period because the GAO said that the schedule only reflects the contractor's PLAN for completion and isn't contractually binding - only the required completion date is binding.

I have also seen case law decisions granting the contractor compensation and sometimes even a time extension where the government delayed scheduled completion even though the contractor completed the project within the required completion period.

This is a complex subject that can't be fully explained in a forum.

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Guest Vern Edwards

See Construction Claims Monthly http://www.constructionclaimsmonthly.org/1877-float-time-who-owns-it-and-why-ownership-matters.html

Who owns the float? There is no one answer to the question. The majority view says that the first party to use the float owns it (David Garcia- Villarreal, CPM Schedules And Project Delay, Construction In Brief, 2002). Some industry insiders insist that if the contract does not specify who owns the float it belongs to the contractor because the contractor should have the right to control its work.

If you have access to the monthly publication, Construction Briefings, see "Who Owns the Float," by Lifschitz and Scott, February 2005, for a comprehensive discussion of the legal history of the issue.

As the use of CPM became more widespread, courts and boards became more familiar with CPM analysis and began to focus more precisely on whether the delay being considered actually affected the critical path and delayed completion of the project. In the absence of a float-sharing clause, float became an expiring resource to be shared by the parties and available to all who act in good faith, and the courts allowed it to be used on a first-come, first-served basis. Many modern construction contracts now directly address float ownership, usually through float-sharing clauses.
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It is correct that I do not work for DOD. I am with the Department of Veterans Affairs (VA). I did work for USACE for 15 years (left in 2006), but do not recall this being an issue. The VA's clauses and specs do not address float - or at least not in this contract.

Thank you for all of your replies and insight. I can see that I have much more research / learning to do.

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