Chapter Three: The Law and Construction 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.
§ 3-1 The Law’s View of Schedules
§ 3-1(a) Courts and Boards Apply Schedules
§ 3-1(a)(1) Defining CPM
Courts, administrative boards, arbitration panels, dispute review boards and mediators throughout the United States have dealt with schedules and scheduling techniques. Only the first two groups publish their observations or findings. These courts look to schedules to assist their fact-finding and decisions in construction and design-related cases. The courts first step in using a schedule is to determine whether the schedule presented to them meets industry standards and, as a result, will assist the court’s resolution.
Most courts and boards have concluded that the critical path method is the superior way to coordinate and schedule. The United States District Court for the Western District of Missouri, in Natkin & Co. v. George A. Fuller Co., observed that, “The Critical Path Method is a valuable tool on a complex job, saving time and money for owners and contractors.”
In this Chapter, we discuss key points in applying schedules by courts and boards:
• Courts have not consistently applied PDM to delay claims in the same manner as this planning and scheduling tool is used in the construction industry.
• Courts prefer PDM schedules to Bar charts to evaluate time-related disputes.
Courts have accepted the construction industry definition of the critical path method. For example, the New Jersey Superior Court, in Dobson v. Rutgers, utilized a definition of CPM from Critical Path Methods in Construction Practice by Antill Woodhead (2d ed. 1970). Blackhawk Heating & Plumbing Co. recognized that “activities not regarded as critical in the planning stage can become so if actual delay is excessive,” matching what is taught about schedules in colleges and universities throughout the United States.
Courts in the past have explained their interpretation of what the schedules presented to them were to represent, and often repeated simplified summaries of critical path method schedules. Few courts do so now. In Roberts & Schaefer Co. v. Hardaway Co., the United States Court of Appeals for the Eleventh Circuit explained:
A CPM schedule is created by dividing the entire project into discrete and quantifiable steps; in turn, each step is allotted an estimated time for completion. Ultimately, each step is arranged into a chronological sequence, thus revealing the anticipated length and structure of the entire construction schedule. In addition to serving as a road map for the contractors to determine when and where their work fits into the overall construction sequence, the CPM schedule also assists contractors in assessing their hiring and material purchasing needs …
"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