By Steve Rizer
Should a Critical Path Method (CPM) schedule be required in the following situation: a contract specification requires a schedule that depicts the orderly development of optimized, time-phased, logically related plans for project execution; the result of these processes being a graphic depiction or listing, or both, of planned project events, their expected start dates, duration, and relationships to other planned project events? In a webinar that WPL Publishing held Oct. 3, Arcadis U.S. Inc.’s John Livengood and Patrick Kelly provided answers to this and 13 other common questions relating to the legal implications of construction schedules.
Addressing a target audience of engineers, architects, public and private owners, design professionals, contractors, subcontractors, manufacturers, suppliers, and construction law attorneys, here is what Arcadis Associate Vice President Livengood and Kelly, a senior claims analyst for the company, said on this topic:
Kelly: This first question … primarily … arises out of the language in scheduling specifications regarding the creation of schedules. Contracts, in all of their various forms, tend to say lots of different things about the schedule. Some specifications that I’m sure many of you have encountered are very, very detailed. If any of you have ever worked on an Army Corps of Engineers project, you know what I’m talking about. They have very, very stringent technical specifications. Lots of information required by the Army Corps of Engineers, and all of that has to be converted into an SDEF [Standard Data Exchange Format] file, which, if you’ve played around with Army Corps schedules, you know what that is and you know how much fun it is to create one. On the other hand, some spec writers take the other tack, and they try to stay as hands-off from the schedule as possible. That usually stems out of a respect for means and methods mindset. But then what the owner has done in writing the specification in that way [is leaving] a lot of information out about what specifically is required in the schedule. And first and foremost out of that is if the contract’s specification requires a schedule and this is what the language says, that depicts the orderly development of optimized, time-phase, logically related plans for project execution[. Also,] the result of these processes is a graphic depiction or listing, or both, of planned project events, their expected start dates, duration, and relationships to other planned project events. The question [arising from] that definition, which is a real definition that we’ve seen, is: Does that mean that a CPM schedule is required?
Livengood: Well, the answer is if that’s in the specification, I suspect the answer is ‘Yes.’ But we’ve found at least one court decision which, although it’s fairly old, specifically addressed the issue. I’ll read the specification requirement: ‘The schedule shall show the order in which the contractor proposes to carry on the work, the dates on which he will start, and the several salient features bracket, including procurement of materials, plant, and equipment’ and the contemplated days for completing the same. Now, the contracting officer -- it’s a government case -- interpreted that specification to require a CPM schedule, and while the contractor objected to that, in the end the contractor did submit a CPM schedule, and the project was completed, apparently, in a timely fashion. In subsequent litigation about some of the change orders, the contractor requested extra money for having to create a CPM schedule where apparently it had been planned to only do a bar chart. And back in 1982, when this case was decided, the engineering board concluded that since the specification did not spell out the requirement of a CPM schedule, this specification did not rise to the level of requiring one, and the contractor was awarded extra costs for having created one. I’ll confess that, as today we stand, I would bet that this is not really good law, if only because virtually all of our specifications are much more complicated and don’t leave this room. Don’t leave room for this kind of interpretation, but we have to recognize that for thousands of years, complicated projects were built without CPM schedules, so there is still room for building projects without CPM schedules.
During the 90-minute webinar, entitled “Legal Implications of the Construction Schedule -- Historical Perspective and Recent Case Law,” Livengood and Kelly additionally answered the following other questions:
- Who develops the CPM schedule?
- What constitutes a reasonable baseline schedule?
- Do baseline schedules have to plan for weather?
- Do baseline or update schedule submissions have to be “approved?”
- Are updates required?
- What constitutes a reasonable update schedule?
- What does “timely” submission mean?
- Are “preliminary schedules” a good idea?
- Who owns the float?
- What about float ownership clauses?
- What if the specification prohibits “float sequestration?”
- Do contractors have to follow the specification methodology for time extensions?
- What is necessary to establish early planned completion?
A recording of the webinar can be purchased via the following link: http://constructionpronet.com/Products/LegalImplications.aspx.