Chapter Six: The Status of Network Schedules - 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.
§ 6-1 Introduction
We have already noted a number of times our preference that the schedule not be a contract document, but the only preference that matters on this point is the one shown by the courts to date. Hence this chapter discusses what the courts have indicated as the preference to be expected at the start of a dispute involving a schedule.
§ 6-2 The Schedule as a Contract Document
In the British case Pigott Foundations Ltd. v. Shepherd Construction Ltd., the general contractor Shepherd could not enforce its construction schedule on its subcontractor Pigott because the court determined the schedule was not “a contract document.” Defending any kind of time or schedule-related claim in Britain or wherever else in the world that British law or British quantity-surveyors have penetrated will typically encounter this defense.
Although encountered more rarely in the United States, case law in this country also has held that a schedule may be ignored if not a contract document. In Titan Pacific Construction Corp. v. United States, the Claims Court determined that a contractor’s as-planned schedule was not a contract document entitled to automatic use for measuring delay or impact. Another U.S. court, while not using the words “contract document,” refused to find an obligation to schedule that was not required in the contract. In Drew Brown, Ltd. v. Joseph Rugo, Inc., the subcontract required only that Brown “carry to completion the work undertaken by the agreement as the progress of the work requires.” No other scheduling clause was present. Brown argued that Rugo breached the contract by failing to coordinate and schedule Brown’s work. The court found Rugo’s responsibilities to Brown did not include the advance scheduling of work. The court stated that if Brown had felt scheduling was so important, it should have been included in the subcontract. While we may find this ruling astonishing, the court in Massachusetts believes that subcontractors must require certain actions by the general contractor to be included in the subcontract language to insure that these actions are in fact performed. Obviously the court has never entered into a subcontract and does not have a clue in this regard
"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