By Bruce Jervis
A construction schedule, however stated, is usually detailed and specific. When properly updated and maintained, the schedule is a powerful tool for project control and administration. It can also be used to support claims for delay and disruption. Consequently, some project owners and contractors eschew precision and specificity in favor of flexibility and discretion. They elect to schedule the work “as directed.”
These clauses are common in subcontracts. Prime contract schedules are frequently altered by the project owner or other factors beyond the contractor’s control. A contractor may want flexibility in scheduling subcontracted work. This flexibility can lead to some surprising results.
A recent example is a subcontract which said the sub would perform in accordance with a “mutually agreeable” schedule and “cooperate in updating the schedule.” Project startup had already been delayed two months when the subcontract was signed. The delay continued. The prime contractor directed the sub to start work eight months later than originally indicated in the subcontract. The subcontractor said it wanted a price increase. The prime contractor terminated the subcontract for default and successfully sued the sub and its performance surety for breach of contract.
Regardless of the tactical advantages to be gained from flexible scheduling, is it a prudent practice? Obvious disadvantages include diminished project control and loss of subcontractor accountability. On projects of considerable complexity and duration, flexible scheduling can be particularly problematic. But overall, do the advantages of maintaining discretion in scheduling work justify the practice? I welcome your comments.
