This article examines ownership of float in construction, for an introduction to the concepts, see this article. Float, a fundamental concept in project scheduling and programming, represents the flexibility or delay tolerance within a project schedule. It signifies the amount of time by which it is possible to postpone an activity without impacting the overall project timeline. In particular, the critical path and contractual completion date.

The concept is relatively simple. However, its ownership and use can be complex, often subject to contractual interpretations and industry best practices.

Who Owns the Float?

Understanding the ownership of float (or slack) in construction project schedules can be challenging for many reasons. These include the specific type, the level of project planning expertise, and contract terms, or absence thereof. Take a look at the end of the article for a list of documents used in the creation of this article.

Shades of Ownership in Construction Contracts

AACE International clarifies that, in the absence of specific contractual language, ‘network float’, defined as the float available on any given path, is a shared commodity so no single party is at a disadvantage[1]. On the other hand, ‘project float’ is the time between the planned completion date and contractual completion date where the project is planned to complete before it is contractually obliged[2]. Where the contract is silent, project float is owned by the contractor. It can be used to accelerate the completion of a project or mitigate contractor-caused delays.

The Society of Construction Law (SCL) sets out that ownership is contract dependent. In one example, the SCL suggest that unless the contract states otherwise, if a delay event occurs which is employer related, and there is total float remaining, an extension of time (EoT) can be granted if the event will use all float available. This means it can be used to mitigate employer delay events.

The SCL discuss varying permutations of float ownership and resulting outcomes. They rightly point readers to their own project contracts for clarity. Ultimately, understanding and applying the principles of ownership requires a careful analysis of project context, contractual agreements, and industry best practices. Such an analysis will ensure, project teams can effectively manage project schedules, mitigate risks, and achieve project success.

The NEC Contract

According to standard NEC phrasing, ‘free float’ is shared and consumed on a first-come, first-served basis. Delays caused by compensation events or slow rate of progress can be mitigated using free float. In contrast, ‘terminal float’ and ‘time risk allowance’ are owned by the contractor.

To protect their rights, contractors using NEC4 must ensure that their project programs clearly show total or terminal float, and time risk allowance. Failure to do so could jeopardise their ability to rely on these types to mitigate delays.

JCT & FIDIC

As far as JCT contract wording goes, float is generally considered a shared resource. It is available on a first-come, first-served basis. This means that any party, whether contractor or employer, can use available float to mitigate delays.

Unlike NEC4 and JCT contracts, FIDIC contracts do not explicitly define float ownership. This means that parties involved in a FIDIC contract must agree on float allocation and use. Ideally this happens before any disputes arise. We cover this, and much more, in our Understanding Claims Under FIDIC 2017 course content.

By being clear about float ownership up front, project participants can avoid potential conflicts and ensure the efficient management of project schedules.

Where float is not properly accounted for, disputes may result. The consequences could include significant financial losses if one party is found responsible for covering the full claim.

A Breakdown of Float Ownership by Document

The following table summarises who owns what type of float according to various sources:

The Evolving Landscape of Ownership

Despite the guidance provided by industry best practices and contract documents, determining ownership remains a complex issue. Each project has unique circumstances that can influence how float is allocated and used.

As technology continues to shape the construction industry, project timelines are becoming increasingly dynamic. Changes and unforeseen challenges are inevitable. It is therefore vital to carefully consider issues like float, concurrent delays, and delay analysis during contract negotiation.

By carefully considering these factors and seeking expert advice, when necessary, project teams can minimise the risk of disputes and ensure they meet their goals. Finally, should you be interested in learning more about delay analysis and how scheduling and planning techniques can be used to manage and assess delay, check out our delay analysis courses.

Documents Referred To:

• AACE International Recommended Practice No. 29R-03 Forensic Schedule Analysis
• CIOB Planning Protocol 2021
• SCL Delay Protocol 2^nd Edition
• NEC4 suite of contracts
• JCT 2024 suite of contracts
• FIDIC 2017 suite of contracts

This article was written by Paul Woodley BSc, LLB, MCIArb.

[1] s 1.5 sub-s B. AACE. (2011). Forensic Schedule Analysis: TCM Framework: 6.4 – Forensic Performance Assessment. AACE International, Inc.

[2]  s 4.3 sub-s E. AACE. (2011). Forensic Schedule Analysis: TCM Framework: 6.4 – Forensic Performance Assessment. AACE International, Inc.