Most construction schedules are objective and well-defined. Maximum calendar days of performance are stipulated. A critical path of activities is frequently depicted. Surprisingly, however, not all construction contracts contain an objective schedule. One still sees contracts where the contractor is simply required to work “diligently” or “expeditiously” and instructed to perform “at the direction of” the project owner, construction manager or general contractor.
Parties are often comfortable with an ill-defined schedule. One reason is the belief that without an objectively stated schedule, there can be no liability for delay damages. This assumption is a fallacy.
In a recent case, a subcontract required the sub to “prosecute the work in a prompt and diligent manner whenever the work or any part of it becomes available.” The subcontractor was aware, however, of the prime contract schedule, including a planned seasonal shutdown of the sub’s portion of the work. The subcontractor mobilized one month after the site became available. When the prime contractor subsequently sought delay damages from the sub, the sub argued that without an objective performance schedule in the subcontract, there could be no liability for delay damages. The subcontractor lost that argument.
What has your experience been with loose construction scheduling? Are there advantages to simply ordering a contractor or subcontractor to perform expeditiously at your direction? Have you seen delay damage claims under contracts which lack an objective schedule?
As always, I welcome your comments.
Featured in Next Week’s Construction Claims Advisor:
- “Diligent Prosecution” Obligated Sub to Prime Contract Schedule
- Excavation Incidental to Construction Even without Building
- Contractor Allowed to Pursue Indemnification from Engineer
Bruce Jervis, Editor
Construction Claims Advisor
