Construction Schedules: Analysis, Evaluation, and Interpretation of Schedules in Litigation and Dispute Resolution - Fifth Edition
The Fifth Edition of Construction Schedules examines the use of construction schedules in resolving disputes over contract time extensions and the economic consequences of such, and takes an in-depth look at the only lasting opinions that count in this litigious arena. These opinions are the ones expressed by the United States court system and other third party neutrals across the world.
Construction schedules are now globally used and analyzed to establish and prove opposing positions when projects are completed later than promised, occurrences that are attributable to a multitude of causes during the construction process. Entitlement to equitable adjustments due to changed conditions is now argued across the globe and American court opinions are the linchpin landmarks for neutral decision makers.
The current edition of Construction Schedules reflects the current thinking of the courts and suggests how parties and their attorneys should prepare and proceed in litigation, arbitration, or mediation.
For anyone involved or potentially involved in construction schedule litigation and/or dispute resolution, this work is the required starting point and reference.
Fifth Edition 2023 supplement included free with purchase of book.
PDF OF TITLE PAGE AND T.O.C.
Fifth Edition 2023 Supplement (included FREE with purchase of book). or
Fifth Edition 2023 Supplement (available instantly for download with your arblaw subscription).
In Memoriam
Preface
About the Authors
Chapter 1
INTRODUCTION TO SCHEDULES
Chapter 2
PROJECT SCHEDULING TECHNIQUES
§ 2-1 Project Scheduling Overview
§ 2-2 Precedence Diagramming Method Schedule
§ 2-2(a) Activities and Logic
§ 2-2(b) Durations and the Critical Path
§ 2-2(c) Float
§ 2-3 Bar Charts and Look Ahead Schedules
§ 2-4 Updating
§ 2-5 Critical Chain Project Management
§ 2-6 Dynamic Progress Method Scheduling
§ 2-7 Pull Planning in Collaborative Projects (Integrated Project Delivery and Lean Contracting)
§ 2-7(a) The Scheduling Portion of Pull Planning
§ 2-7(b) The Weekly Meetings
§ 2-7(c) Choosing to Use Pull Planning
§ 2-8 Reflections and Personal Experiences
§ 2-8(a) Reflections
§ 2-8(b) Personal Experiences
Chapter 3
THE LAW AND CONSTRUCTION SCHEDULES
§ 3-1 The Law's View of Schedules
§ 3-1(a) Courts and Boards Apply Schedules
§ 3-1(a)(1) Defining CPM
§ 3-1(a)(2) Preference for CPM/PDM
§ 3-1(b)Industry Views Schedules Differently
§ 3-2 The Schedule Must Be Complete
§ 3-3 The Schedule Must Be Substantiated
§ 3-4 The PDM/CPM Consultant
§ 3-5 The Dates in the Schedule: A Commitment or Guide?
§ 3-5(a) Schedules Are Flexible Planning Tools
§ 3-5(b) Work Sequence Does Not Have Same Flexibility
§ 3-5(c) Contract Completion Date Only Real Commitment
§ 3-6 The Benefit of Float
§ 3-7 Mistakes in the Schedule
§ 3-8 Pre-Bid Schedules
§ 3-9 Mutual Responsibilities under the Schedule
§ 3-9(a) All Parties in the Project
§ 3-9(a)(1) New York State
§ 3-9(b) Owner and Contractor
§ 3-9(b)(1) Owner Submittal Delay
§ 3-9(b)(2) Owner's Failure to Schedule or Coordinate
§ 3-9(b)(3) Owner's Liability for Cardinal Changes
§ 3-9(c) General Contractor Must Conform to Schedule Imposed on Subcontractor
§ 3-9(d) Subcontractor Schedule at the General Contractor's Direction
§ 3-9(d)(1) Subcontractor May Determine Own Sequence
§ 3-9(d)(2) Contractor Obligated to Reasonably Sequence Subcontractor's Work
§ 3-9(d)(3) Subcontractor Work to Contractor Direction
§ 3-10 The Significance of Updates
§ 3-10(a) The Law's View of Updates
§ 3-10(b) Disagreement on Update Data
§ 3-10(b)(1) Shadow Schedules
§ 3-10(b)(2) Fraud and Shadow Schedules
§ 3-11 Changes in Scheduled Sequence
§ 3-12 The Schedule as Notice
§ 3-13 The Schedule's Role in Termination
§ 3-13(a) Termination for Failure to Complete
§ 3-13(b) Termination for Failure to Make Progress
§ 3-13(c) Importance of a Schedule Analysis to Evaluate Failure to Progress Claims
§ 3-13(d) Opportunity to Cure before Termination for Failure to Progress
§ 3-13(e) Waiving the Right to Terminate
§ 3-14 Recovery Schedules
§ 3-15 The Schedule's Significance in Evaluating Proposals
§ 3-16 Schedules and Acceleration
Chapter 4
IMPROVING SCHEDULING CLAUSES AND REQUIREMENTS
§ 4-1 Contractor's Scheduling Requirements
§ 4-2 Subcontractor Scheduling Requirements
§ 4-3 Designer's Scheduling Requirements
§ 4-4 Owner Participation in the Scheduling Process
§ 4-5 Standards and Ethics in Preparing and Analyzing Construction Schedules
Chapter 5
USING THE SCHEDULE TO PROVE TIME
§ 5-1 Introductory Thoughts
§ 5-1(a) A Poor Network Analysis May Be Persuasive
§ 5-2 Schedule Status and Approval
§ 5-3 Techniques to Present Schedule-Related Claims
§ 5-3 (a) The Contemporaneous Method
§ 5-3(a)(1) The Contemporaneous Method Explained
§ 5-3(a)(2) Contemporaneous Method without Contemporaneous Updates: The Time Impact Analysis
§ 5-3(a)(3) The Wise Contractor's Use of Contemporaneous Scheduling Techniques
§ 5-3(a)(4) The Wise Owner's Actions in View of the above Contractor Scheduling Work
§ 5-3(b) The As-Planned or What-If Method
§ 5-3(c) But-for or the Collapsed CPM Method (BFM)
§ 5-3(d) Using As-Built Dates
§ 5-3(d)(1) As-Planned versus As-Built Schedule Comparisons
§ 5-3(d)(2) As-Built Method (ABM)
§ 5-3(e) Choosing a Delay Analysis Method
§ 5-3(f) Concurrent Delay
Chapter 6
THE STATUS OF NETWORK SCHEDULES
§ 6-1 Introduction
§ 6-2 The Schedule as a Contract Document
§ 6-2(a) What It Means to Be a Contract Document
§ 6-2(b) When a Schedule Is Not a Contract Document
§ 6-3 The Schedule as Evidence
§ 6-3(a) The Schedule as a Business Record
§ 6-3(a)(1) Contemporaneous Recording of Facts
§ 6-3(a)(2) Regularly Conducted Activity
§ 6-3(a)(3) Regular Recording Practice
§ 6-3(a)(4) Delay Analysis Not Business Record
§ 6-3(b) Best Evidence Rule
§ 6-3(c) Schedules as Scientific Evidence
§ 6-3(d) The Schedule as Testimony to Be Confronted
§ 6-3(e) The Schedule as Expert Testimony
§ 6-3(f) The Schedule as Experimental Evidence
§ 6-3(g) Building or Project Information Modeling
§ 6-3(h) Spoliation
§ 6-4 Conclusion
Chapter 7
CONTRACT SCHEDULING REQUIREMENTS
§ 7-1 General Contract Scheduling Requirements
§ 7-1(a)(1) The ConsensusDOCS 200 Standard Form General Conditions between Owner and Contractor for a Lump Sum Contract
§ 7-1(a)(2) The ConsensusDOCS 300 Standard Form
§ 7-1(a)(3) The American Institute of Architects Standard Form A–201–2007, General Conditions of the Contract for Construction
§ 7-1(a)(4) FIDIC 2005---Major Development Bank Harmonized Conditions of Contract for Construction---General Conditions
§ 7-1(a)(5) State Standard Contract Schedule Specifications
§ 7-1(a)(6) Federal Scheduling Clauses
§ 7-1(a)(6)(a) VA Scheduling Clauses
§ 7-1(a)(6)(b) GSA Scheduling Requirements
§ 7-1(a)(6)(c) Construction Manager Scheduling Requirements
§ 7-1(a)(6)(d) Military Unified Facilities Guide
§ 7-1(b) Other Schedule-Related Contract Requirements
§ 7-1(b)(1) The Scheduling Consultant
§ 7-1(b)(2) Time of Performance
§ 7-1(b)(3) Good Practice
§ 7-1(b)(4) To Demonstrate Delay
§ 7-1(b)(5) Termination
§ 7-2 Subcontractor Scheduling Requirements
§ 7-2(a) The ConsensusDOCS 750 2007 Standard Form of Agreement between Contractor and Subcontractor
§ 7-2(b) A Typical Subcontract Agreement between Contractor and Subcontractor
§ 7-3 Recommended Owner Schedule-Related Clauses
§ 7-4 Design Contract Schedule Clauses
§ 7-5 Design-Build Schedule Clauses
§ 7-6 Appendix
ILLUSTRATIONS AND EXHIBITS
Chapter 2
Illustration 2.1 Typical Precedence Method Logic Diagram
Illustration 2.2 Complex PDF Relationships
Exhibit 2.3 PDM Printout
Chapter 3
Illustration 3.1 Partial CPM Schedule--Henry Ericsson Co. v. United States
Chapter 5
Exhibit 5.1 Project Start and Finish Date Matrix As-Planned Schedule Bar Chart
Exhibit 5.2 Superintendent's Daily Report
Exhibit 5.3 Project Start and Finish Date As-Built Dates from Daily Logs Plotted
Exhibit 5.4 Project Start and Finish Date Matrix As-Built Bar Chart
Exhibit 5.5 As-Planned Tenant Schedule
Exhibit 5.6 As-Planned Tenant CPM
Exhibit 5.7 As-Planned Tenant Timescale
Exhibit 5.8 As-Built Tenant CPM #1
Exhibit 5.9 As-Built Tenant Schedule
Exhibit 5.10 As-Built Tenant Timescale
Exhibit 5.1 As-Built Tenant Schedule CPM #1
Exhibit 5.12 As-Built Tenant Schedule CMP #2
Chapter 7
Symbol Legend
Table of Cases
Index
Michael T. Callahan is President of CCL Construction Consultants, Inc. He maintains an active international consulting practice in the measurement and responsibility of delay, along with the quantification of additional performance costs and other construction and design-related matters. He earned a B.A. from the University of Kansas and both a J.D. and L.L.M. from the University of Missouri-Kansas City. Mr. Callahan has written or edited Termination of Construction and Design Contracts; Procurement of Design and Construction Contracts; Construction Change Order Claims—2nd Edition; and, is the co-author of Construction Delays Claim. He also prepares a monthly newsletter summarizing current design and construction case decisions for Construction Law Digest. Mr. Callahan was an adjunct professor at the University of Kansas and has lectured throughout the United States, Europe, the Middle East and Far East on design and construction-related topics. He is a member of the Kansas, New Jersey, and Missouri bars by examination. Mr. Callahan is also a frequent arbitrator, negotiator, mediator, and a regional advisor to the American Arbitration Association.
H. Murray Hohns, PE, Fellow ASCE, was a Construction Consultant, Mediator and Arbitrator in private practice. He began to work out of Honolulu in 1987 and his specialty was construction delay, those responsible, and its consequences. Mr. Hohns founded Wagner-Hohns-Inglis-Inc. in 1965 and built it into one of the country’s 250 largest Consulting Engineers. He had two degrees in Civil Engineering and an MA in theology. He wrote or contributed to eight books on dispute resolution, worked on projects in all 50 states and overseas, and managed major construction projects for their owners. Mr. Hohns also wrote a monthly expert commentary for a compilation of reported construction cases for over seven years. He was former President of the Project Management Institute, the National Academy of Forensic Engineers, a member of the Board of Directors for the American Arbitration Association and a thirteen-year member of the national investment committee for a major religious denomination.
"The new edition of Construction Schedules is a welcome update to the Construction Industry. Construction Schedules is a practical and useful guide to the practitioner in addressing construction delay claims. This treatise will provide a much needed discussion of alternative scheduling methods. In light of recent case law that seems to open the door to alternative schedule analysis, Callahan's and Hohns' most recent effort should be a welcome library addition to Owners, Contractors, Designers and their counsel."
--H. James Wulfsberg, Senior Principal with Wulfsberg Reese Colvig & Firstman, and nationally recognized expert in construction law
Michael T. Callahan is President of CCL Construction Consultants, Inc. He maintains an active international consulting practice in the measurement and responsibility of delay, along with the quantification of additional performance costs and other construction and design-related matters. He earned a B.A. from the University of Kansas and both a J.D. and L.L.M. from the University of Missouri-Kansas City. Mr. Callahan has written or edited Termination of Construction and Design Contracts; Procurement of Design and Construction Contracts; Construction Change Order Claims—2nd Edition; and, is the co-author of Construction Delays Claim. He also prepares a monthly newsletter summarizing current design and construction case decisions for Construction Law Digest. Mr. Callahan was an adjunct professor at the University of Kansas and has lectured throughout the United States, Europe, the Middle East and Far East on design and construction-related topics. He is a member of the Kansas, New Jersey, and Missouri bars by examination. Mr. Callahan is also a frequent arbitrator, negotiator, mediator, and a regional advisor to the American Arbitration Association.
H. Murray Hohns, PE, Fellow ASCE, was a Construction Consultant, Mediator and Arbitrator in private practice. He began to work out of Honolulu in 1987 and his specialty was construction delay, those responsible, and its consequences. Mr. Hohns founded Wagner-Hohns-Inglis-Inc. in 1965 and built it into one of the country’s 250 largest Consulting Engineers. He had two degrees in Civil Engineering and an MA in theology. He wrote or contributed to eight books on dispute resolution, worked on projects in all 50 states and overseas, and managed major construction projects for their owners. Mr. Hohns also wrote a monthly expert commentary for a compilation of reported construction cases for over seven years. He was former President of the Project Management Institute, the National Academy of Forensic Engineers, a member of the Board of Directors for the American Arbitration Association and a thirteen-year member of the national investment committee for a major religious denomination.
"The new edition of Construction Schedules is a welcome update to the Construction Industry. Construction Schedules is a practical and useful guide to the practitioner in addressing construction delay claims. This treatise will provide a much needed discussion of alternative scheduling methods. In light of recent case law that seems to open the door to alternative schedule analysis, Callahan's and Hohns' most recent effort should be a welcome library addition to Owners, Contractors, Designers and their counsel."
--H. James Wulfsberg, Senior Principal with Wulfsberg Reese Colvig & Firstman, and nationally recognized expert in construction law
PDF OF TITLE PAGE AND T.O.C.
Fifth Edition 2023 Supplement (included FREE with purchase of book). or
Fifth Edition 2023 Supplement (available instantly for download with your arblaw subscription).
In Memoriam
Preface
About the Authors
Chapter 1
INTRODUCTION TO SCHEDULES
Chapter 2
PROJECT SCHEDULING TECHNIQUES
§ 2-1 Project Scheduling Overview
§ 2-2 Precedence Diagramming Method Schedule
§ 2-2(a) Activities and Logic
§ 2-2(b) Durations and the Critical Path
§ 2-2(c) Float
§ 2-3 Bar Charts and Look Ahead Schedules
§ 2-4 Updating
§ 2-5 Critical Chain Project Management
§ 2-6 Dynamic Progress Method Scheduling
§ 2-7 Pull Planning in Collaborative Projects (Integrated Project Delivery and Lean Contracting)
§ 2-7(a) The Scheduling Portion of Pull Planning
§ 2-7(b) The Weekly Meetings
§ 2-7(c) Choosing to Use Pull Planning
§ 2-8 Reflections and Personal Experiences
§ 2-8(a) Reflections
§ 2-8(b) Personal Experiences
Chapter 3
THE LAW AND CONSTRUCTION SCHEDULES
§ 3-1 The Law's View of Schedules
§ 3-1(a) Courts and Boards Apply Schedules
§ 3-1(a)(1) Defining CPM
§ 3-1(a)(2) Preference for CPM/PDM
§ 3-1(b)Industry Views Schedules Differently
§ 3-2 The Schedule Must Be Complete
§ 3-3 The Schedule Must Be Substantiated
§ 3-4 The PDM/CPM Consultant
§ 3-5 The Dates in the Schedule: A Commitment or Guide?
§ 3-5(a) Schedules Are Flexible Planning Tools
§ 3-5(b) Work Sequence Does Not Have Same Flexibility
§ 3-5(c) Contract Completion Date Only Real Commitment
§ 3-6 The Benefit of Float
§ 3-7 Mistakes in the Schedule
§ 3-8 Pre-Bid Schedules
§ 3-9 Mutual Responsibilities under the Schedule
§ 3-9(a) All Parties in the Project
§ 3-9(a)(1) New York State
§ 3-9(b) Owner and Contractor
§ 3-9(b)(1) Owner Submittal Delay
§ 3-9(b)(2) Owner's Failure to Schedule or Coordinate
§ 3-9(b)(3) Owner's Liability for Cardinal Changes
§ 3-9(c) General Contractor Must Conform to Schedule Imposed on Subcontractor
§ 3-9(d) Subcontractor Schedule at the General Contractor's Direction
§ 3-9(d)(1) Subcontractor May Determine Own Sequence
§ 3-9(d)(2) Contractor Obligated to Reasonably Sequence Subcontractor's Work
§ 3-9(d)(3) Subcontractor Work to Contractor Direction
§ 3-10 The Significance of Updates
§ 3-10(a) The Law's View of Updates
§ 3-10(b) Disagreement on Update Data
§ 3-10(b)(1) Shadow Schedules
§ 3-10(b)(2) Fraud and Shadow Schedules
§ 3-11 Changes in Scheduled Sequence
§ 3-12 The Schedule as Notice
§ 3-13 The Schedule's Role in Termination
§ 3-13(a) Termination for Failure to Complete
§ 3-13(b) Termination for Failure to Make Progress
§ 3-13(c) Importance of a Schedule Analysis to Evaluate Failure to Progress Claims
§ 3-13(d) Opportunity to Cure before Termination for Failure to Progress
§ 3-13(e) Waiving the Right to Terminate
§ 3-14 Recovery Schedules
§ 3-15 The Schedule's Significance in Evaluating Proposals
§ 3-16 Schedules and Acceleration
Chapter 4
IMPROVING SCHEDULING CLAUSES AND REQUIREMENTS
§ 4-1 Contractor's Scheduling Requirements
§ 4-2 Subcontractor Scheduling Requirements
§ 4-3 Designer's Scheduling Requirements
§ 4-4 Owner Participation in the Scheduling Process
§ 4-5 Standards and Ethics in Preparing and Analyzing Construction Schedules
Chapter 5
USING THE SCHEDULE TO PROVE TIME
§ 5-1 Introductory Thoughts
§ 5-1(a) A Poor Network Analysis May Be Persuasive
§ 5-2 Schedule Status and Approval
§ 5-3 Techniques to Present Schedule-Related Claims
§ 5-3 (a) The Contemporaneous Method
§ 5-3(a)(1) The Contemporaneous Method Explained
§ 5-3(a)(2) Contemporaneous Method without Contemporaneous Updates: The Time Impact Analysis
§ 5-3(a)(3) The Wise Contractor's Use of Contemporaneous Scheduling Techniques
§ 5-3(a)(4) The Wise Owner's Actions in View of the above Contractor Scheduling Work
§ 5-3(b) The As-Planned or What-If Method
§ 5-3(c) But-for or the Collapsed CPM Method (BFM)
§ 5-3(d) Using As-Built Dates
§ 5-3(d)(1) As-Planned versus As-Built Schedule Comparisons
§ 5-3(d)(2) As-Built Method (ABM)
§ 5-3(e) Choosing a Delay Analysis Method
§ 5-3(f) Concurrent Delay
Chapter 6
THE STATUS OF NETWORK SCHEDULES
§ 6-1 Introduction
§ 6-2 The Schedule as a Contract Document
§ 6-2(a) What It Means to Be a Contract Document
§ 6-2(b) When a Schedule Is Not a Contract Document
§ 6-3 The Schedule as Evidence
§ 6-3(a) The Schedule as a Business Record
§ 6-3(a)(1) Contemporaneous Recording of Facts
§ 6-3(a)(2) Regularly Conducted Activity
§ 6-3(a)(3) Regular Recording Practice
§ 6-3(a)(4) Delay Analysis Not Business Record
§ 6-3(b) Best Evidence Rule
§ 6-3(c) Schedules as Scientific Evidence
§ 6-3(d) The Schedule as Testimony to Be Confronted
§ 6-3(e) The Schedule as Expert Testimony
§ 6-3(f) The Schedule as Experimental Evidence
§ 6-3(g) Building or Project Information Modeling
§ 6-3(h) Spoliation
§ 6-4 Conclusion
Chapter 7
CONTRACT SCHEDULING REQUIREMENTS
§ 7-1 General Contract Scheduling Requirements
§ 7-1(a)(1) The ConsensusDOCS 200 Standard Form General Conditions between Owner and Contractor for a Lump Sum Contract
§ 7-1(a)(2) The ConsensusDOCS 300 Standard Form
§ 7-1(a)(3) The American Institute of Architects Standard Form A–201–2007, General Conditions of the Contract for Construction
§ 7-1(a)(4) FIDIC 2005---Major Development Bank Harmonized Conditions of Contract for Construction---General Conditions
§ 7-1(a)(5) State Standard Contract Schedule Specifications
§ 7-1(a)(6) Federal Scheduling Clauses
§ 7-1(a)(6)(a) VA Scheduling Clauses
§ 7-1(a)(6)(b) GSA Scheduling Requirements
§ 7-1(a)(6)(c) Construction Manager Scheduling Requirements
§ 7-1(a)(6)(d) Military Unified Facilities Guide
§ 7-1(b) Other Schedule-Related Contract Requirements
§ 7-1(b)(1) The Scheduling Consultant
§ 7-1(b)(2) Time of Performance
§ 7-1(b)(3) Good Practice
§ 7-1(b)(4) To Demonstrate Delay
§ 7-1(b)(5) Termination
§ 7-2 Subcontractor Scheduling Requirements
§ 7-2(a) The ConsensusDOCS 750 2007 Standard Form of Agreement between Contractor and Subcontractor
§ 7-2(b) A Typical Subcontract Agreement between Contractor and Subcontractor
§ 7-3 Recommended Owner Schedule-Related Clauses
§ 7-4 Design Contract Schedule Clauses
§ 7-5 Design-Build Schedule Clauses
§ 7-6 Appendix
ILLUSTRATIONS AND EXHIBITS
Chapter 2
Illustration 2.1 Typical Precedence Method Logic Diagram
Illustration 2.2 Complex PDF Relationships
Exhibit 2.3 PDM Printout
Chapter 3
Illustration 3.1 Partial CPM Schedule--Henry Ericsson Co. v. United States
Chapter 5
Exhibit 5.1 Project Start and Finish Date Matrix As-Planned Schedule Bar Chart
Exhibit 5.2 Superintendent's Daily Report
Exhibit 5.3 Project Start and Finish Date As-Built Dates from Daily Logs Plotted
Exhibit 5.4 Project Start and Finish Date Matrix As-Built Bar Chart
Exhibit 5.5 As-Planned Tenant Schedule
Exhibit 5.6 As-Planned Tenant CPM
Exhibit 5.7 As-Planned Tenant Timescale
Exhibit 5.8 As-Built Tenant CPM #1
Exhibit 5.9 As-Built Tenant Schedule
Exhibit 5.10 As-Built Tenant Timescale
Exhibit 5.1 As-Built Tenant Schedule CPM #1
Exhibit 5.12 As-Built Tenant Schedule CMP #2
Chapter 7
Symbol Legend
Table of Cases
Index