Blog Viewer

Construction Progress Schedules: Contractors’ Responsibility for Controlling the Work

By Kevin O'Beirne, PE, FCSI, CCS, CCCA, CDT posted 12-06-2021 04:30 PM

  
This is the first of a two-part series on construction progress schedules (read part two). This part addresses schedule terminology, locations of schedule requirements in the construction documents, and the contractor’s responsibilities for construction progress schedules. The next part will address design professionals’ and construction managers’ reviews of construction progress schedules.

To manage their risk during construction, design professionals, construction managers as advisors (CMa), and other owner-hired consultants should clearly understand the contractor’s responsibilities for scheduling and controlling the construction work. This is essential not only for logistical purposes but also to avoid infringing on the contractor’s obligations and sharing the contractor’s risk.

Terminology

To help ensure that everyone is speaking the same language and has the same understanding of who is responsible for what, it’s important to recognize certain distinctions in terms that are commonly or uncommonly used, as the case may be).

In this series, the term construction progress schedule refers to a contractor’s time-based schedule that apportions the construction work into detailed, discrete activities, with start and end dates assigned to each.

A variety of terms are used in the design and construction communities relative to construction progress schedules, but many of them are not entirely adequate for all circumstances. For example, the term construction schedule—used in the standard contracts of the American Institute of Architects (AIA)—could also be construed as referring to multiple types of construction-related schedules, including the contractor’s schedule of values and schedule of submittals. The term used by the Engineers Joint Contract Documents Committee (EJCDC), progress schedule, could be construed as referring to updates of the initial construction progress schedule. And the initial construction progress schedule is often called the baseline schedule, although neither the Engineers Joint Contract Documents Committee (EJCDC) nor AIA uses this reference.

The term project schedule typically refers to a time-based schedule for all phases of capital project implementation, including project conception, design and construction documents preparation, bidding or procurement, construction, and perhaps certain post-construction activities.

Cost-loaded and/or resource-loaded construction progress schedules may also be required. These will be addressed in the next blog post in this series.

Locations of Contractual Requirements

Knowing where to find information can save time and eliminate confusion. Here is where contractual clauses pertinent to construction progress schedules are typically located:

  1. The owner-contractor agreement, which indicates the contract times.
  2. The general conditions (as may be augmented by the supplementary conditions), which typically establish basic requirements for the construction progress schedule and provisions on delays.
  3. The Specifications Section 01 32 16 – Construction Progress Schedule, which typically requires submittal of an initial “baseline” construction progress schedule and periodic (often monthly) updates.

CSI MasterFormat®, which assigns 00 31 13.16 – Preliminary Construction Schedule, is another resource for locating schedules. In my experience, the owner-, design professional-, or CMa-prepared preliminary construction progress schedules developed during the design stage are rarely issued with bidding documents and, when so issued, should include appropriate disclaimers such as this:

This preliminary construction progress schedule, prepared by the [Architect] [Engineer] [Construction Manager], is presented solely for illustrative purposes during bidding and initial pricing and in no way mitigates or changes Contractor’s sole responsibility for construction means, methods, procedures, techniques, and sequences. This preliminary construction progress schedule is not part of the Contract Documents.”

To further emphasize that preliminary schedules (developed during the design stage) are not part of the proposed contract documents, these schedules should optimally be separate from the bidding documents when issued to prospective bidders. Such preliminary schedules should never become part of the contract documents when the parties sign the owner-contractor agreement.

Contractor’s Responsibilities for Progress Schedules

In the built environment, the contractor’s responsibilities for construction progress schedules and related matters take precedence over everything. Suffice to say, to avoid muddying the contractual waters for control of the work, the design professional and construction manager as advisor (CMa) should never undertake any of the contractor’s responsibilities for scheduling and construction means, methods, procedures, techniques, or sequencing.

Here are the contractor’s scheduling obligations as set forth in the widely-used standard contracts of the EJCDC and AIA.

EJCDC C-700—2018, Standard General Conditions of the Construction Contract, includes the following defined term:

“[1.01.A] 31. Progress Schedule—A schedule, prepared and maintained by Contractor, describing the sequence and duration of the activities comprising Contractor’s plan to accomplish the Work within the Contract Times.”

EJCDC C-700 also includes this example:

Figure 1 – An excerpt from a contractor-prepared construction progress schedule

“[2.03] A. Preliminary Schedules: Within 10 days after the Effective Date of the Contract (or as otherwise required by the Contract Documents), Contractor shall submit to Engineer for timely review:

“1.  a preliminary Progress Schedule indicating the times (numbers of days or dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract;”

The term preliminary Progress Schedule is used because EJCDC presumes the engineer will always have comments on the contractor’s initial submittal of the progress schedule. Thus, the contractor-prepared preliminary Progress Schedule is to be complete and not a partial or otherwise truly “preliminary” schedule.

C-700 Paragraph 2.04 requires a preconstruction conference at which one of the topics of discussion is to be the preliminary schedules submitted in accordance with Paragraph 2.03.A. It is unclear if EJCDC intends that the engineer’s comments on the preliminary progress schedule are to be delivered in writing or whether oral comments at the preconstruction conference are sufficient. C-700 Paragraph 2.05 further requires, prior to the contractor’s first progress payment request, the contractor’s submittal of the revised, acceptable progress schedule, schedule of submittals, and schedule of values. These are to be “accepted” by the engineer, although the mechanism by which the engineer “accepts” them is not addressed in C-700.

During construction, EJCDC C-700 Paragraph 4.04 (Progress Schedule) requires the contractor to: (1) comply with the progress schedule accepted by the engineer; (2) submit updates to the progress schedule consistent with the contract times; (3) comply with provisions on contract modifications for progress schedule changes that require a change in the contract times; and (4) comply with the progress schedule during disagreements and disputes with the owner, except as expressly allowed otherwise by the contract or by mutual agreement of the parties.

Significantly, C-700 Paragraph 7.01 (Contractor’s Means and Methods) requires in part the following:

“A.  Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction.”

C-700 Paragraph 7.07 (Concerning Subcontractors and Suppliers) requires this:

“I.   Contractor shall be solely responsible for scheduling and coordinating the work of Subcontractors and Suppliers.”

Finally, C-700 Paragraph 7.17 (Contractor’s General Warranty and Guarantee) obligates the contractor to comply with the contract documents, including the stipulated contract times.

An important difference between AIA and EJCDC construction contracts is what constitutes the contract times. EJCDC documents define the Contract Times as: (1) substantial completion, (2) the time by which all the work must be completed and ready for final payment (i.e., final completion); and (3) interim milestones, if any, required prior to substantial completion. In contrast, AIA’s construction contracts use the term Contract Time (singular), which is only the time for substantial completion. AIA documents provide that the architect will establish an appropriate time for final completion via the architect’s certificate of substantial completion. Thus, construction progress schedules on projects using EJCDC documents must clearly indicate all contract times, whereas construction schedules on projects using AIA documents likely need indicate only the contract time for substantial completion and any interim, stipulated milestones.

AIA A201—2017, Standard General Conditions of the Contract for Construction, uses the term construction schedule (not as a defined term) with the following meaning:

“§ 3.10 Contractor’s Construction and Submittal Schedules
“§ 3.10.1 The Contractor, promptly after being awarded the Contract, shall submit for the Owner’s and Architect’s information a Contractor’s construction schedule for the Work. The schedule shall contain detail appropriate for the Project, including (1) the date of commencement of the Work, interim schedule milestone dates, and the date of Substantial Completion; (2) an apportionment of the Work by construction activity; and (3) the time required for completion of each portion of the Work. The schedule shall provide for the orderly progression of the Work to completion and shall not exceed time limits current under the Contract Documents. The schedule shall be revised at appropriate intervals as required by the conditions of the Work and Project.
“§ 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and Architect.”

A201 does not address the consequences of the contractor’s failure to submit an appropriate construction schedule “promptly after award of the Contract.” Again, EJCDC C-700 Paragraph 2.05 conditions the contractor’s eligibility for its first progress payment on the engineer’s acceptance of the construction progress schedule.

AIA A201 also includes the following regarding construction schedules for projects with multiple prime contractors:

“§ 6.1.3  …The Contractor shall participate with any Separate Contractors and the Owner in reviewing their construction schedules. The Contractor shall make any revisions to its construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, Separate Contractors, and the Owner until subsequently revised.”

In contrast to AIA A201 Section 6.1.3, EJCDC C-700 does not directly address progress schedules for multiple prime contractors; thus, when EJCDC documents are used, coordination of construction progress schedules among separate primes should be addressed in the Division 01 specifications.

A201 Section 15.1.6.2 requires the contractor’s continued, diligent performance during resolution of claims, similar to EJCDC C-700 Paragraph 4.04.B. 

Like EJCDC C-700 Paragraphs 7.01.A and 7.07.I, AIA A201 allocates to the contractor sole responsibility for construction means, methods, and sequences, and for scheduling subcontractors and suppliers, as follows:

“§ 3.3 Supervision and Construction Procedures
“§ 3.3.1 …The Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work under the Contract….
“§ 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor’s employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors.”


In A201 Section 3.5.1, the contractor warrants that the work will comply with the contract documents, including stipulated contract times, using language similar to EJCDC C-700 Paragraph 7.17.

Thus, the contractor’s responsibilities for the construction progress schedule and related matters are generally similar in the standard general conditions of both AIA and EJCDC. Both expressly impose on the contractor sole responsibility for construction means, methods, and sequences, and require submittal of the contractor’s construction progress schedule, which must be in accordance with the contract times and indicate an orderly progression of the work. Both AIA and EJCDC documents require the contractor to comply with its own construction progress schedule.

Specifications Section 01 32 16 – Construction Progress Schedule, may establish additional requirements, such as the following:

  • Using a mandatory software platform required in developing construction schedules.
  • On large, complex projects, allowing for a “90-day schedule” (or similar duration and terms) for the initial several weeks of construction, while the contractor completes its baseline construction progress schedule, developed in conjunction with principal subcontractors and suppliers.
  • Indicating when resource- or cost-loading is required (discussed in the next blog post in this series).
  • Indicating when additional documents should accompany construction schedule submittals, such as network diagrams, mathematical tables, and narrative reports.
  • Having requirements for contractor-prepared time impact analyses for changes in the work.
  • Setting provisions for contractor-prepared recovery schedules when the work is projected to be completed more than a contractually stipulated number of days beyond one or more of the contract times.

 

Conclusions
With so many parties involved and so much at stake in capital project delivery, it’s essential that design professionals and CMas fully understand and have a healthy respect for the contractor’s scope of authority and responsibilities. That means taking the time to understand key nuances in the construction documents language and making the commitment to display proper conduct, actions, and statements throughout the construction stages. The result is responsible risk management, good communication, and a work product that everyone can be proud of.

Acknowledgments: The author gratefully acknowledges Jim Brown, PE, CSI, CCCA®, vice president in construction management at Arcadis, and Jon Westervelt, PE, CCM, vice president of construction management at Kennedy/Jenks Consultants, for their expertise and input in the development  of this blog post.

Copyright 2021 by Kevin O’Beirne

The content of this blog post is by the author alone and should not be attributed to any other individual or entity.

Kevin O’Beirne, PE, FCSI, CCS®, CCCA® is a professional engineer licensed in New York and Pennsylvania with over 30 years of experience designing and constructing water and wastewater infrastructure for public and private clients. He is the engineering specifications manager for a global engineering and architecture design firm. He is also a member of various CSI national committees and is the certification chair of CSI’s Buffalo-Western New York Chapter. O’Beirne is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo, NY, area.  Kevin O’Beirne’s LinkedIn page

0 comments
31 views

Permalink