Whose time is it anyway?

The float paradox

Few questions in delay analysis generate as much disagreement as the ownership of float. A Contractor notifies a delay caused by late drawings, late access or a suspension instruction. The Engineer accepts that the event occurred and that it was at the Employer's risk, yet rejects the extension of time because the affected activity “had float”. The Contractor responds that the float was its own, created through its chosen methods and resources, and that the Employer had no right to consume it.

Both positions are regularly advanced and both have some foundation. The answer, in most cases, lies not in a general principle but in the wording of the contract, the status of the programme and the quality of the contemporaneous records.

At CDRC, programme and delay analysis forms a central part of our claims practice across hydropower, road, bridge and building contracts in Nepal and the region. This article explains how float arises, reviews the leading literature and authorities on its ownership, and draws out the practical consequences for extension of time entitlement.

Spare time or borrowed time? Understanding float

Float is the amount of time an activity, or a chain of activities, can be delayed without delaying a defined point in the programme. Free float is the time an activity can slip without delaying the early start of its successor. Total float is the time an activity can slip without delaying completion of the project. Terminal float is the period between the Contractor's planned completion date and the contractual Time for Completion, and arises where the Contractor programmes to finish early.

Float is not always genuine. Preferential logic, inflated durations, contingency hidden within activities, date constraints and resource levelling all affect the float an analysis will show. A dispute over who owns the float is therefore often, in reality, a dispute over whether the float shown in the programme is real.

Three claimants, one buffer

Contractor ownership

Float results from the Contractor's own planning, methods and resources. The Contractor bears the risk of its own delays, so it should enjoy the benefit of any buffer it has created, and an Employer delay consuming that float should still attract an EOT.

Employer ownership

The Employer pays for the project and fixes the Time for Completion. Any float is time the Employer has effectively purchased and may use for its own variations and delays.

Project ownership

Float is a shared resource used on a “first come, first served” basis. An Employer delay results in an EOT only to the extent that it pushes completion beyond the Time for Completion.

What the literature says

The Society of Construction Law Delay and Disruption Protocol (2nd edition, 2017) is the most frequently cited guidance. Absent express terms, it adopts the project-ownership position: an EOT is granted only to the extent that the Employer Delay is predicted to exhaust the remaining total float on the relevant critical path. The Protocol candidly accepts the consequence that, where early Employer delays consume the float, a later Contractor delay which would not otherwise have been critical may expose the Contractor to delay damages.

Leading practitioner commentary broadly supports this reading for FIDIC and JCT forms, observing that there is no universal rule and that, because EOT depends on delay to the contractual completion date, float must normally be exhausted before an EOT arises. A similar conclusion is reached in commentary comparing FIDIC and NEC4, which notes that under FIDIC the float before contractual completion does not belong exclusively to the Contractor. Other commentators go further and read Glenlion as supporting Employer ownership of float under English law.

Recent expert literature questions whether a binary ownership model is adequate at all. Dr Franco Mastrandrea of HKA proposes distinguishing “original” float, built into the Contractor's priced programme and presumptively the Contractor's, from “emergent” float arising during execution, which belongs to the party whose acts created it, or to the project where it arises from neutral events. In the United States, AACE International's forensic schedule analysis guidance treats network float as a shared commodity absent contrary contract language, while the case law is divided, with some decisions protecting the Contractor's float against the owner's changes.

On the related question of cost, the literature is also divided. The Protocol recognises that a Contractor prevented by Employer Delay from achieving a realistic, known early completion date may in principle recover its costs even without an EOT, whereas Keating takes the more restrictive view that prolongation costs are not recoverable while completion within the Contract Period remains possible.

Reading the fine print: standard forms

FIDIC

Neither the 1999 Red and Yellow Books nor the MDB Harmonised Edition contains an express float provision. Under Sub-Clause 8.4 (1999) and Sub-Clause 8.5 (2017), the Contractor is entitled to an EOT “if and to the extent that” completion is or will be delayed by a listed cause. Entitlement is tested against the Time for Completion, placing FIDIC close to the project-ownership position. The 2017 editions strengthen the programming obligations under Sub-Clause 8.3, requiring a more detailed programme that identifies the critical path or paths, which makes the float position at any date easier to establish and equally easier to challenge.

NEC4

Delay to the Completion Date is measured by the movement of planned Completion on the Accepted Programme. Terminal float is therefore protected for the Contractor, although float on individual activities remains available to absorb delay.

Nepal public contracts

Most public works contracts in Nepal, whether on PPMO standard bidding documents or FIDIC-based conditions for donor-funded projects, are silent on float. The EOT wording therefore governs, and it ties entitlement to delay to the Intended Completion Date or Time for Completion. In our experience, Engineers frequently reject EOT applications on the ground that the affected activity was not critical, often without an updated programme to support that assertion.

The courts weigh in

In Glenlion Construction Ltd v The Guinness Trust (1987) 39 BLR 89, the Contractor was entitled to complete early, but the Employer was under no implied obligation to enable it to do so, and the earlier programme date was not the reference point for assessing delay.

In Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd (1999) 66 Con LR 119, the main contractor sought to use a five-week programme float to absorb delays caused by itself and other sub-contractors in preference to those of the claimant sub-contractor. HH Judge Hicks rejected this, holding that where several parties are responsible for delay the benefit of the float should be shared between them and not allocated at the main contractor's choice. The decision is widely read as supporting the view that, where the contract is silent, float is not for the exclusive benefit of either party.

From float to entitlement: implications for EOT

No EOT where float absorbs the delay. Under FIDIC-type wording, an Employer delay absorbed by float will not usually produce an EOT. The Contractor must show, through critical path analysis on a contemporaneous programme, that completion itself is delayed.

Sequencing risk. Float consumed by the Employer is not available later to the Contractor. A modest later Contractor delay may then push completion beyond the Time for Completion and trigger delay damages. Float consumption should therefore be recorded as it occurs.

Time and cost are distinct. Absence of an EOT does not always mean absence of compensation, particularly where a realistic early completion plan was known to the Employer at tender, although the authorities on this point are not uniform.

Disruption and acceleration. Loss of float can compel resequencing, overtime or additional resources to protect the completion date. These are separate heads of claim requiring proof of cause and cost.

Programme status is decisive. A programme that was never accepted, never updated or contains unrealistic logic carries little weight in any float argument, whichever party relies on it.

Winning the float game: practical recommendations

For Contractors

• Submit a realistic, logic-linked baseline with float visible rather than buried in durations.
• Show any time risk allowance as a separate activity.
• Update the programme regularly with float reports.
• Notify every delay event, whether or not it is critical at the time.
• Support EOT applications with a time impact analysis on the latest updated programme.

For Employers and Engineers

• Respond to programme submissions within the contractual period.
• Avoid rejecting EOT applications on float grounds without a current programme demonstrating that float.
• Include an express float clause at tender stage where a departure from the default position is intended.

For both parties

Where the contract is silent and the project is time-sensitive, agree in the Particular Conditions how float is to be treated. Clarity at the outset costs far less than a delay dispute at the end.

Conclusion: float follows the contract

Float belongs to no one by nature; it belongs to whoever the contract says it belongs to.

Under FIDIC and most Nepal public contracts, float is in practice a project resource, and an EOT arises only when completion itself is pushed beyond the Time for Completion. Under NEC4, terminal float is protected for the Contractor. In every case, the outcome of an EOT claim turns less on the ownership principle than on the credibility of the programme and the records. Parties who manage float actively throughout the project are far better placed when the question of time must finally be answered.

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