There are several means and methods available to defend against ‘schedule gamesmanship’ in construction projects, Navigant Construction Forum Executive Director James Zack told a target audience of contractors, public and private owners, subcontractors, construction managers, owners’ representatives, architects, and others during a webinar series that WPL Publishing held last month. During the three-part series, Zack and others from Navigant Consulting Inc. identified more than 15 scheduling games and provided more than 45 suggested defenses. Here are some of the games that they identified and their suggested defenses to those games:
- In one such game concerning baseline or as-planned schedules, there is a failure to provide a schedule. The absence of a schedule submitted at the beginning of a project occurs most often when there is no scheduling specification or when the contract reads something to the effect of “The contractor shall submit a plan for constructing the work,” Zack said. In the absence of a schedule, the owner is unable to detect and demonstrate the contractor’s failure to plan, coordinate, and manage the work properly. Additionally, owners are unable to coordinate their own activities with contractors’ activities and manage their own work properly because they don’t know what the contractors’ plans are. “The goal of this when we’ve seen this done frequently is no project schedule at the beginning leaves the contractor and the claims consultant free to build an as-planned versus an as-built schedule at the end of the job in order to ‘prove’ a delay claim at the end of the project.” Some of the suggested defenses include the following: during design, an owner and design professional should craft scheduling specification; use mobilization payment to “entice” submittal and approval of baseline schedule; tie schedule submittals to “x” days after the notice of award; clearly define the submittal and review process in the contract; require a pre-construction scheduling conference “x” days after the notice of award; and require the schedule for the first 90 days of work within 30 days after the notice of award.
- Another game involves a failure to show any submittal reviews. “This is where your baseline schedule arrives on the desk of the owner or the owner’s reviewer, whoever that is, and you look at it and find there’s no submittal review activities despite a clear contract requirement,” Zack said. “The concept here that I’ve experienced is the contractor may assert, if the schedule is accepted that way, that the owner ‘waived’ all submittal review requirements. Most likely, the contractor, if this happens and the owner accepts the schedule, will give notice of delay or delay impact whenever a submittal review ‘holds up’ a scheduled construction or installation activity. They use the delayed submittal review to justify a cumulative impact claim.” Some of the recommended defenses include the following: specify all submittals, submittal reviews, procurement/fabrication, and deliveries included in the schedule as activities; require the designer to provide a master list of submittals; and require a separate schedule for submittals and submittal reviews.
- Another game involving a baseline or as-planned schedule is a failure to show procurement activities. A contractor provides a schedule that shows only installation activities and shows no submittals, reviews, fabrication, or delivery. Suggested defenses include the following: require that fabrication, delivery, and installation activities be included in the schedule for “all major pieces of equipment”; define, specify, or list in contract documents what items are “all major pieces of equipment”; require a separate schedule showing submittals, submittal reviews, fabrication, delivery, and installation for all “major pieces of equipment”; and require a work breakdown structure code that identifies for all “major pieces of equipment.”
- “Failure to show startup or testing activities” is the subject of another game that the speakers identified. “This is a baseline schedule that shows that either no time or very nominal time for starting and testing whatever it is you’ve built, and then of course delay and impact claims arise when startup and testing takes longer,” Zack said. “Frankly, I’m not entirely certain if this is truly a game or it’s a lack of understanding.” To combat this issue, the speakers recommended that owners set forth required activities and estimate time to perform required startup and testing. They suggested including a list of activities required in specification, including the time estimated in contract documents, and requiring the contractor to include “no less than” estimated time in the baseline schedule.
Other schedule games the speakers discussed included inaccurate as-built information, changing project history, changing project calendars, among others.
“The idea is to restore the schedule to the status of a planning and a coordination or a management tool instead of something that’s just being used to set up for additional change orders or claims or something like that,” Zack said.
To inquire about obtaining a recording of the webinar series, entitled “Construction Scheduling Games -- Revisited,” call WPL Publishing at (301) 765-9525.
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