Chapter Four: Improving Scheduling Clauses and Requirements - Construction Schedules - Fifth Edition
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.
§ 4-1 Contractor’s Scheduling Requirements
Our suggestions that may improve schedule clauses to facilitate the use of the schedule by both the contractors that use them and the courts that interpret them can be summarized as:
• scheduling clauses should eliminate words that imply definiteness in the sequence, duration, start, or finish of portions of the work.
• scheduling clauses should assign the ownership of float to the project or permit time extensions to be measured from activity dates.
• scheduling clauses should permit sufficient time to develop the schedule.
• schedule clauses should require and define good schedule practice in order to encourage good scheduling and avoid manipulation that misstates the length or effect of a delay.
• scheduling clauses should not require owner or designer approval before revisions are permitted.
• schedule clauses should permit the owner or designer to demand a recovery schedule
Our considerable discussion of how courts view schedules and use them to resolve disputes can also provide a focus for suggestions to improve the clauses in the contract that define how the schedule is to be used both during and after the project. One can see from these cases an advantage to prescribing what kind of schedule should be used; How big the schedule is expected to be; Whether the schedule will be used to determine payment; approved by the owner or designer; or whether the owner or designer will be able to demand a recovery schedule. There are also advantages to prescribing the method used to determine whether a delaying event is entitled to a time extension.
The most frequent and significant error made in interpreting scheduling clauses occurs when the dates in a schedule are perceived as a commitment rather than a flexible guide which is expected to change over time. Schedules which are developed according to industry standards and needs establish the sequential order of the work activities; indicate direction and control of work; anticipate material and equipment delivery dates; and aid in project coordination among the owner, contractor, and designer.
Most in the industry understand that schedules are not developed to identify four hundred or two thousand (or whatever the number of construction activities contained in the schedule) completion dates, although there are many contracts that demand the contractor “meet the dates in the schedule.” The only committed dates existing in a construction schedule are the project completion and any intermittent milestone dates established by the contract. It is the effect of any activity’s delayed completion on project completion or other contract milestones that is significant. Schedules are planning tools, not contract commitments beyond those start, end, and other milestone dates.
"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