This is the second of a three-part series on construction progress schedules. The first part addressed schedule terminology, locations of schedule requirements in the construction documents, and the contractor’s responsibilities for construction progress schedules. This second, concluding part addresses design professionals’ and construction managers’ reviews of construction progress schedules.
Just casually looking at a construction progress schedule may result in a minor headache because they appear, and are, complicated. What should a design professional or construction manager as advisor (CMa) be considering when reviewing a contractor’s construction progress schedule? How do design professionals’ and CMa’s typical responsibilities differ relative to scheduling? Should the design professional or CMa even review and comment on construction progress schedules at all?
If the reviewer goes either too far or not far enough, serious consequences can result. Construction progress schedules are often “difficult” submittals, somewhat akin to a delegated design submittal, because they require a limited review.
If the design professional or CMa reviewing the contractor’s construction progress schedule devotes inadequate attention to their review, the construction progress schedule may be insufficient and serve as a strong exhibit bolstering the contractor’s delay claims. When the design professional or CMa goes too far in the other direction, perhaps by commenting on every activity, date, and preceding event, the reviewer may inadvertently risk undertaking some of the contractor’s responsibilities for controlling the work. This blog post attempts to describe an appropriate middle ground between these extremes where the design professional or CMa can comply with their standard of care and other contractual obligations while maintaining a clear, bright line between their and the contractor’s responsibilities.
Design Professionals’ Responsibilities for Reviewing Construction Schedules
In most design-bid-build projects, the architect or engineer performs construction contract administration services for the owner, including reviewing and commenting, where necessary, on the contractor’s construction progress schedule.
It is essential for design professionals’ project managers and key team members to read and understand their professional services agreement and its scope of services. While the model contract language of the American Institute of Architects (AIA) and the Engineers Joint Contract Documents Committee (EJCDC) are discussed below, each professional services agreement and scope of services is unique.
The widely-used standard general conditions of AIA and EJCDC take very different approaches to review of the contractor’s progress schedule. EJCDC C-700 requires the engineer’s express “acceptance”, for limited purposes, of the progress schedule, whereas neither AIA A201 nor its associated owner-architect agreement, obligates either the owner or architect to review, approve, accept, or take any specific action on the contractor’s construction progress schedule. The relevant provisions are discussed below.
Figure 1 - Close-up of typical left-side columns of a contractor's construction progress schedule
EJCDC C-700—2018 Paragraph 2.05.A.1 indicates:
“1. The Progress Schedule will be acceptable to Engineer if it provides an orderly progression of the Work to completion within the Contract Times. Such acceptance will not impose on Engineer responsibility for the Progress Schedule, for sequencing, scheduling, or progress of the Work, nor interfere with or relieve Contractor from Contractor’s full responsibility therefor.”
EJCDC C-700 Paragraph 7.16 (“Submittals”) and related provisions requires the engineer to review submittals (including the progress schedule) in accordance with the times indicated in the “Schedule of Submittals” accepted by the engineer. Finally, C-700 Paragraph 10.07 (“Limitations on Engineer’s Authority and Responsibilities”) states in part:
“B. Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor’s means, methods, techniques, sequences, or procedures of construction…Engineer will not be responsible for Contractor’s failure to perform the Work in accordance with the Contract Documents.”
EJCDC E-500—2020, Agreement between Owner and Engineer for Professional Services, includes the following in Exhibit A, Paragraph 1.06.B:
“8. Schedules: [Engineer shall] Receive, review, and, subject to the criteria of the Construction Contract, determine the acceptability of any and all schedules that Contractor is required to submit to Engineer, including the progress schedule, schedule of submittals, and schedule of values. Advise Contractor in writing of Engineer’s comments or acceptance of schedules.
“a. Schedules will be acceptable to Engineer as to form and substance:
“1) Progress Schedule: if it provides an orderly progression of the Work to completion within the Contract Times. Such acceptance will not impose on Engineer responsibility for the Progress Schedule, for sequencing, scheduling, or progress of the Work, nor interfere with or relieve Contractor from Contractor’s full responsibility therefor…”
Neither EJCDC C-700 nor E-500 clearly addresses precisely how the engineer “accepts” the contractor’s schedules. Presumably, this may be either via an express, written indication of acceptance or by indicating “accepted” in the engineer’s submittal log and periodically sharing the engineer’s submittal log with the contractor. This writer’s employer takes the latter approach and shares the engineer’s submittal log with the contractor monthly or upon the contractor’s request.
AIA A201—2017 does not expressly establish conditions under which the contractor’s construction schedule will be acceptable to the owner or architect; indeed, A201 Section 3.10.1 states the construction schedule is submitted merely for the owner’s and architect’s “information”. However, A201 Section 3.10.1 establishes requirements for the construction schedule’s content, which the architect may be expected to verify in any reviews of the construction schedule.
Interestingly, AIA A201 Sections 3.10.2 and 3.12.5 each require the architect’s express “approval” of the contractor’s submittal schedule, which, of course, must be closely coordinated with the construction schedule.
AIA B101—2017, Standard Form of Agreement Between Owner and Architect, also does not explicitly require the architect’s review of the contractor’s construction schedule, but does obligate the architect to advise the owner during construction of, “known deviations from the most recent construction schedule submitted by the Contractor”. Identical language is also included in AIA B201—2017, Standard Form of Architect’s Services: Design and Construction. These imply the architect must be reasonably familiar with each submitted update of the contractor’s construction schedule.
Similar to EJCDC C-700 Paragraph 10.07.B’s express statement that the engineer has no responsibility for construction means, methods, and sequences, AIA A201 states in part:
“§ 4.2.2 …The Architect will not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor’s rights and responsibilities under the Contract Documents.”
Regardless of the general conditions used in the construction contract, the project’s specifications Section 01 32 16 – Construction Progress Schedule (or similarly numbered or titled section) may augment the general conditions for the contractor and design professional or CMa. Also, the scope of professional services in the agreement between the owner and design professional or CMa may further address the responsibilities of the reviewer of the construction progress schedule.
Construction Managers’ Reviews of Progress Schedules
Because construction progress schedules have nothing to do with the final, completed work, as designed by the architect or engineer, construction progress schedules need not be reviewed by the design professional-in-responsible-charge. Instead, they may be reviewed by others not under the direct, supervisory control of the design professional-in-responsible-charge, such as a third-party construction manager as advisor (CMa), owner’s program manager, or the owner’s employees.
When the owner retains the services of a CMa for the project, the CMa will typically review construction progress schedules for the reasons indicated above for design professionals on design-bid-build projects. However, because CMa’s typically possess additional expertise relative to construction scheduling than do most design professionals, owners often require increased schedule-related services of CMa’s. For example, a CMa is often required to prepare an overall project schedule during the design stage containing design and other project stakeholder activities, including construction contractor(s), and to maintain and update the project schedule throughout construction.
During construction, CMa’s are sometimes required to track construction progress against the CMa’s project schedule and to endeavor to secure contractors’ compliance with the CMa’s project schedule, which is a significant difference from the architect’s and engineer’s schedule-related responsibilities under design-bid-build.
In some cases, the owner may expect or require the CMa to review contractors’ construction progress schedules to determine whether time allocated for key construction activities appears reasonable. Owners may desire such services as a means of reducing the potential for subsequent delay claims by contractors.
Differences from design professionals’ responsibilities relative to construction progress schedules are revealed by examining two widely-used standard forms for owner-CMa agreements.
AIA C132—2019, Standard Form of Agreement between Owner and Construction Manager as Adviser, includes the following:
“§ 3.2.4 The Construction Manager shall prepare and periodically update the Project schedule included in the Construction Management Plan for the Architect’s review and the Owner’s acceptance. The Construction Manager shall obtain the Architect’s approval for the portion of the Project schedule relating to the performance of the Architect’s services. The Project schedule shall coordinate and integrate the Construction Manager’s services, the Architect’s services, other Owner consultants’ services, and the Owner’s responsibilities and highlight items that affect the Project’s timely completion.
“§ 3.3.4 The Construction Manager shall provide administrative, management and related services to coordinate scheduled activities and responsibilities of the Contractors with each other and with those of the Construction Manager, the Owner and the Architect. The Construction Manager shall coordinate the activities of the Contractors in accordance with the latest approved Project schedule and the Contract Documents.
“§ 3.3.5 The Construction Manager shall review and analyze the construction schedules provided by the Contractors to update the Project schedule, incorporating the activities of the Owner, Architect, and Contractors on the Project, including activity sequences and durations, allocation of labor and materials, processing of Shop Drawings, Product Data and Samples, and delivery and procurement of products, including those that must be ordered in advance of construction. The Project schedule shall include the Owner’s occupancy requirements showing portions of the Project having occupancy priority. The Construction Manager shall update and reissue the Project schedule as required to show current conditions. If an update indicates that the previously approved Project schedule may not be met, the Construction Manager shall recommend corrective action to the Owner and Architect.
Regarding schedules, AIA A232—2019, General Conditions of the Contract for Construction, Construction Manager as Adviser Edition, includes language similar to AIA A201—2017, although A232—2019 includes the following regarding the contractors’ obligations concerning the CMa’s project schedule:
“§ 3.10.3 The Contractor shall participate with other Contractors, the Construction Manager, and the Owner in reviewing and coordinating all schedules for incorporation into the Project schedule that is prepared by the Construction Manager. The Contractor shall make revisions to the construction schedule and submittal schedule as deemed necessary by the Construction Manager to conform to the Project schedule.
“§ 3.10.4 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner, Construction Manager, and Architect, and incorporated into the approved Project schedule.”
Thus, AIA C132 and A232 place on the CMa responsibility for actively coordinating the construction schedules of multiple prime contractors, as well as construction stage activities of the owner and architect, but does not expressly address the CMa’s review and comments on contractor-submitted construction schedules, other than C132 Section 3.3.5 requiring that the CMa “analyze” them. In C132 Section 3.3.5, the meaning of the word, “analyze” is unclear.
Regarding schedules, EJCDC CMA-501—2021, Agreement between Owner and Construction Manager as Advisor, indicates the following:
“[2.01] G. Scheduling (All Phases)—[Construction Manager shall] Carry out the following scheduling tasks, and necessary updates and revisions, in the appropriate phase or phases, including the design phase, Contractor selection phase, and construction phase:
“1. Prepare a draft schedule for the Project. The schedule will identify management tasks and activities, specific design, and construction tasks consistent with the work breakdown structure, and target and milestone dates.
“2. Update the draft master schedule to reflect the final work plans developed by the Engineer and Contractor for the Project.
“3. Prepare a milestone schedule that indicates the last acceptable date for each scheduled activity and the party responsible for each activity.
“4. Monitor the Project schedule and milestone schedule and revise as necessary to determine the impact of scope and schedule changes.
“5. Develop scheduling requirements for Contractor and incorporate them into the Contract Documents.
“6. Review Contractor’s preliminary schedules to determine that the proposed construction schedule is consistent with the Project master schedule.
“7. Compare actual with planned progress each month during the Project to determine if the Project is on schedule. Include information regarding overall schedule in monthly summary reports.
“8. Analyze Contractor proposals and entitlements regarding delays in progress, time for completion, and similar matters. Incorporate Construction Contract modifications into the schedule and evaluate the impact on the schedule. Use this information to assess the impact of Construction Contract changes on the Project to negotiate an equitable change in the Contract Times or Contract Price, if warranted.
“9. Performing a time-impact analysis in the event of a claim (as defined in the Construction Contract) for time or extended overhead, is an Additional Service.”
Regarding the contractor’s construction progress schedule, EJCDC CMA-700—2021, Standard General Conditions of the Construction Contract—Construction Manager as Advisor, is virtually identical to EJCDC C-700—2018, except that construction progress schedules must be submitted to and accepted by the construction manager, rather than the engineer.
Thus, relative to the CMa’s schedule-related services, EJCDC CMA-501 is more detailed than AIA C132, although both require the CMa to develop an overall project schedule with which the CMa is to coordinate the contractors’ associated construction progress schedule(s). Neither AIA C132 nor EJCDC CMA-501 requires the CMa to review construction progress schedules to reveal the foundations for future, possible time-related claims, although numerous owners require such services of CMa’s.
Both EJCDC CMA-501 and AIA C132 do, however, require more extensive, schedule-related services of the CMa than is required of the design professional in AIA’s and EJCDC’s standard contract documents for design-bid-build projects.
Resource- and Cost-Loaded Progress Schedules
Modern scheduling software allows development of resource-loaded and cost-loaded schedules. Incorporating such data into the construction progress schedule may be useful or required on some projects, but also introduces an added dimension to the schedule reviewer’s task.
Resource loading assigns specific labor, materials and equipment, construction equipment and machinery, and other assets to each activity. During construction, resource-loaded schedules may be useful in evaluating whether the contractor is executing the work with the diligence and resources originally planned or necessary to complete the work within the contract times. The true usefulness of a resource-loaded schedule for this purpose depends on the accuracy of the resource-loading and diligence with which the schedule and its resource allocations are updated throughout the project.
Figure 2 – An example of how resource loading is displayed in a contractors construction progress schedule
Cost-loading assigns to each scheduled activity an appropriate, portion of the contract price. Cost-loaded progress schedules are required typically only when the amounts of the contractor’s progress payment requests will be determined based on the schedule, which is likely more widely used on larger, more-complex projects,
When a cost-loaded construction progress schedule is required and will be used as the basis for determining amounts eligible for progress payments, the reviewer should devote at least as much attention to the schedule’s cost-loading as would normally be done in reviewing a contractor’s schedule of values. Where the construction progress schedule will not be used as the basis for progress payments, cost-loading should probably not be required, and such data should likely not be reviewed by the design professional or CMa. Whether a cost-loaded construction progress schedule should be required for use as the basis for progress payments should be determined, in conjunction with the owner, during the design stage. Cash flow projections can be exported from cost-loaded construction progress schedules, which may be useful for the owner’s project financing and budgeting.
Recommendations for Reviewing Construction Progress Schedules
In addition to other recommended practices relative to shop drawings and submittals previously presented on this blog (Part 1, Part 2, Part 3, Part 4, and Part 5), the following are recommended for design professionals’ reviews of contractors’ construction progress schedules:
- Verify the construction progress schedule indicates compliance with all contract times, including interim milestones, if any. If the schedule does not demonstrate compliance with the contract times, it should not be accepted.
- Review for compliance with contractual constraints, such as work that is seasonally-dependent, and maximum allowable outage durations.
- Verify the construction progress schedule appears reasonably complete for the project’s work and verify that individual activities are measurable, e.g., having a single activity for “concrete” or “order materials” is usually unacceptable. As another example, on one of this writer’s past projects, the contractor’s initial baseline construction progress schedule submittals omitted a lower-value element of the work that proved to be the project’s critical path.
- Verify that work sequences and mandatory durations established in the contract documents, such as minimum required curing periods for cast-in-place concrete, are part of the scheduled activities.
- Verify the schedule does not presume work on restricted days, such as weekends or the owner’s legal holidays when work on such days is restricted by the contract.
- Verify the construction progress schedule presents an orderly, reasonable plan for the progress of the work.
- Verify that the schedule includes activities of other project participants not under the contractor’s control, but that will influence the work’s progress, e.g., design professional’s approvals, owner’s selection of materials covered by cash allowances, a facility manager’s obligation to make existing facilities ready for the contractor’s work, third-party utility owners’ activating new services or facilities required for the project, and issuance of permits and performance of inspections by or for authorities having jurisdiction.
- Verify the construction progress schedule’s submitted format. For example, many construction contracts’ Section 01 32 16 – Construction Progress Schedule (or equivalent), mandate using specific scheduling software.
Construction managers as advisors (CMa) reviewing construction progress schedule submittals should comply with the recommendations presented above for design professionals and, depending on the scope of services in the owner-CMa contract, the CMa must also typically ensure the contractors’ construction progress schedules are consistent with the CMa-prepared overall project schedule. Depending on the contract, the CMa may have additional responsibilities for coordinating the work of separate prime construction contractors.
Design professionals should avoid the following when reviewing construction progress schedules:
- Commenting on minutia and details.
- Evaluating preceding events and network logic inherent in the construction progress schedule, except where such errors are obvious and readily apparent to the reviewer.
- Commenting on activities not explicitly addressed in the contract documents.
- Commenting on the contractor’s means, methods, and sequences of construction not expressly mandated in the contract documents. Indeed, the design professional’s normal, garden variety submittal review stamp (or electronic facsimile thereof), as recommended in a prior post on this blog, should expressly state the reviewer is not responsible for construction means, methods, techniques, sequences, or procedures, or their associated safety and protection
- Because construction progress schedules should typically be “informational submittals”, as discussed in a prior post on this blog, they should not receive an express “approval”.
Finally, all comments on the contractor’s progress schedule submittals should be written assuming they will become exhibits in a dispute over alleged delays in the work. The audience for the design professional’s or CMa’s comments includes the contractor, subcontractors, attorneys, courts, arbitrators, insurance carriers, and the surety..
CMa’s schedule reviewers should heed the recommendations presented above for design professionals, although the extent to which a CMa can or should comply with the above list of “actions to avoid” will depend on the CMa’s scope of services and owner expectations.
When resource- or cost-loaded schedules are required, the reviewing design professional or CMa should consider and comply with the recommendations and advice presented, above, in the prior section of this blog post.
Reviewing the contractor’s submittal of construction progress schedules is a challenging and potentially risk-filled activity. While proper attention must be devoted to it, such reviews should be limited in scope and, in some cases, a written response to the contractor may not be required. Where written responses to schedule submittals are necessary, they should be clearly written, with appropriate disclaimers, and appropriate for the limited review required.
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 reviewing and commenting on drafts 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.
The author of this blog post is not an attorney and nothing in this blog post constitutes legal advice. Readers in need of legal advice should consult with a qualified, experienced attorney.
Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA 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 a member of various CSI national committees and is the certification chair of CSI’s Buffalo-Western New York Chapter. He 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.