Pacing Delays – The Practical Effect on Construction Projects & Delay Claims

                                              "Pacing Delays – The Practical Effect on Construction Projects & Delay Claims" by

                                              • Philip M. Spinelli
                                              • James G. Zack, Jr., CCM, CFCC, FAACE, FRICS


                                              This paper is focused on pacing delay, a controversial delay issue in the construction industry. Currently there is little literature on pacing delay and case law is a bit sparse. Thus, owners and contractors often find themselves at odds with one another over the practical effect of pacing delay in a delay claim situation. This paper defines the term; identifies what constitutes pacing delay; and sets forth the contractor’s legal right to pace an owner caused delay and addresses the practical impact of a pacing delay, both to the project as well as to a delay claim. This paper is intended to assist in a better understanding of pacing delay and how the issue may be dealt with by both owners and contractors.

                                              1. Purpose – The purpose of the paper is to define pacing delay; identify what constitutes pacing delay; describe the contractor’s legal right to pace owner caused delay; and address the practical impact on projects and delay analysis.

                                              2. Design / Methodology / Approach – The paper focuses on the issue of pacing delay exclusively. The contractor’s legal right to pace owner delay is explored through analysis of a number of U.S. court cases. The impact on delay analysis is dealt with in the context of AACE’s Recommended Practice 29R-03 – Forensic Schedule Analysis. Further, the paper offers recommendations to contractors should they decide to pace a known owner caused delay in order to reserve their rights to assert pacing delay in a schedule delay analysis.

                                              3. Findings & Value – The value of the paper is its observations concerning the practical impact of pacing delay on both the management of a project and the performance of a schedule delay analysis. The paper also discusses decision making concerning whether or not to pace the other party’s delay and offers practical recommendations should the decision be made to pace a delay.

                                              4. Research Limitations / Implications – The paper rests entirely on U.S. case law and may or may not be applicable to other common law or civil law countries.

                                              5. Practical Use / Implications – The practical use of the paper is the discussion of what to consider when deciding to pace a delay; the impact this decision may have on the project and the delay analysis; and the recommendations concerning notice of pacing and preparation and submittal of a pacing plan.

                                              6. Originality /Value – This paper assist owners and contractors by providing a better understanding of pacing delay and how this issue can be dealt with should it arise on a project.

                                              7. Conclusions – This paper deals with a topic that is rarely discussed in the literature and does so in both the legal context and the practical implications of pacing a delay.

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