Ok Caline ,
Let us do it in a summery way:
1- The schedule is a contract Document unless an explicit clauses in the contract stating that.
2- When the contractor forced by the owner or the consultant to give up his rights to get a claim of time, then the contractor has to make balance of the two matters.
Will he stick to his rights to make and win the time claim or he will leave his rights for another benefits or some extra compensation from the Owner.
It is his decision.

I am truly grateful for everybody’s opinion.

Although this case may not be something truly debatable that a case rarely (or maybe never) proceeded further to arbitration, this too deserves serious attention. We know that in every project, a significant amount of money is lost due to delay.

Tomas Rivera actually explained the point very well and I should not elaborate further but I want to say my piece as well since I started this issue, and after about 6 months since I started it, I gained more information regarding the issue.

Firstly, I must say that without explicit clauses in the contract stating that a Schedule is not part of a Contract, then it is part of a Contract. If without explicit statement as above, then it should be classified under “Any other documents forming part of the Contract”, this we normally see on a Contract section regarding Contract documents. Among others, correspondences, duly signed site progress report, documents showing approval of shop drawings, materials, proposals, minutes of meetings, just like approved baseline schedule (unless superseded), are all categorized under these “Any other documents…”.

Tomas is right. How then can we make all members of an organization responsible enough and ensure their commitment if a schedule is not part of a contract? Hence, in any standard Construction Project Contract, a schedule is normally part of a contract.

But going back to the original question, can a Contractor stick with the baseline schedule though each party admittedly find it not so logical?

I observed in the succeeding opinions that the issues have not merely focused on the legality of sticking to the baseline schedule, but likewise on whether this thing is fair. Maybe I over simplified my explanation in my initial thread. Perhaps I have to elaborate the situation further although I’m not sure if I can explain it clearly.

The project had been delayed due to many issues mostly attributable to the Owner. So, it was already expected that there will be time extension, the only thing to be discussed about was how much time extension should be given. Due to the urgency of the project, the Contractor was doing its internal re-arrangement of schedule to mitigate further delay, while at the same time the Contractor, the Consultant and the Owner were discussing about the time extension deserved by the Contractor. To complicate it further, the Owner assigned a target date of project completion. So the issues involved were not only time extension, but also include probable work acceleration (this was assuming that the time extension is determined to be beyond the target project completion).

The re-arranged schedule actually being implemented at site (to meet the target date of completion) have not been officially concurred by all parties pending agreement on what will be the basis of time extension and work acceleration. The Contractor initially insisted on its right according to baseline schedule regardless of the actual progress at site. The Contractor said, “lets establish the time extension first, then we can determine the acceleration period”. But Consultant and the Owner insisted, “let us base it on the actual progress at site”.

A claim may sometimes be unfair by human standard of fairness when we read the Contract in black and white. As Rex said, the logic was not smart but anyway it was not impossible, this is the Contractor’s prerogative and the Consultant approved it anyway. But in actual application, if I am an experienced Project Manager, I will not follow the approved logic if I find it not smart so that I can actually finish the work even ahead of the target date set on the baseline schedule. This I need to coordinate with all concern, such that the original logic will have to be changed officially. But why will I choose to finish the work ahead of schedule without some extra compensation from the Owner?

Now, assuming the project is delayed (on paper only) and I am a Contractor who is looking at the contract in black and white. I may pursue my case, anyway I have a basis. To the Owner’s point of view, this is highly unfair. (This is Joe’s point that the Owner would pay for the hypothetical delay).

Let us look on the Contractor’s point view based on the situation discussed earlier. The Contractor exerted all its effort to meet the Owner’s demand despite that no official agreement is reached yet with respect to time extension and a guarantee for compensation of cost acceleration, if any. The Contractor absorbed mostly if not all the impact brought by this internal re-arrangement, such as the sudden change of delivery schedule of materials, getting more staff to complete all the required drawings, importing more manpower at site, among many others. All this internal re-arrangement involved cost, and without a truly good and well implemented project monitoring system, this cost cannot be readily quantified. Because of the complicated situation, the Contractor now find it hard to determine which should govern, the actual progress at site(which was actually accelerated) or the baseline schedule? If the Contractor decided to stick on the baseline schedule, is it becoming unfair to the Owner? Without accurate data to support each one’s contention, it is hard to establish who is becoming unfair in this situation.

But let us be grateful, the Contract exists to protect each party’s right. When it was conceived by the Owner, it was deemed fair to protect the Owner’s rights first and foremost. So I must say the Contractor has the option to pursue its case and as Taher have said, “it will absolutely win a claim of time”.

But lets face it still that in most cases, even though we are bind by the contract, we cannot get away with our sense of individual fairness. Again, let us be grateful because there is a term called “negotiation” (or even arbitration) to settle this.

This is needless to say, my experience had been mostly in construction engineering, design and work methodologies. Contracts and Claims is my newest baby(about 3 years old), but I find it the most interesting because apart from the more predictable construction and design engineering, which are mostly based on established parameters, project management, contracts and claims involves varied unpredictable thoughts from countless interesting people, such as this group. Maybe we can discuss some more issues later. I’m truly pleased to meet you all. Call me Caline next time…

Joe,
We don’t have to forget the 1st question sent by Carolina it was:
(Original Logic of Schedule)
(Can a Contractor hold on to the approved logic of a project schedule as one of its contractual rights?)
The answer is very simple " Regarding that the schedule is a contract document, all the contract I am working with the schedule is a contract document, then the contractor can hold on to the approved logic schedule"
And he will absolutely win a claim of time.
But as I said before not for ever he must resubmit a revised schedule avoiding the logic mistake, if any, and this submittal will be also a contract document after approved it by the consultant.
I didn’t rush it but I think it is very clear now.
Thank you for your valuable discussion and best regards.
Taher

Joe,
I think Tomas Rivera had made it clear and nothing to say after that.
Thank you
Taher

Hi Joe, Contract Claims is not my area of expertise. I would base my position on whatever was specifically agreed in the contract.

Bernard Ertl
InterPlan Systems - eTaskMaker Project Planning Software

Taher,
About the programme being a contract document, I still insist on my point that it is not. If you know of any reference stating the contrary, please let me know. I repeat that the programme of works are not normally approved but rather consented on.

As to what you call mistakes by the consultant, soft or preferential links are not considered mistakes in a programme. Consultants cannot reject them, they are still the Contractor’s prerogatives that show his intention for completing the Works.
An Employer event may happen hitting the critical path. If this path contains soft links, I don’t think it would be fair for the Owner to pay for delays just because this is what the programme reads. If it is not a delay that could be physically seen on site, the owner would be paying for a hypothetical delay. I see this as highly unfair.

While appreciating Taher’s interventions, I would like to hear from other people on this subject (particularly Ron Winter, Tomas Rivera, Bernard Ertl, and others).

Joe

Taher,

I disagree with you that the consented program is a contract document. This does not mean that it cannot be used as a basis for a claim.
If it was a contract document, it would be binding to the Contractor and he will loose his flexibility for using any method he sees fit.
Living in the middle east, I suppose you are familiar with the FIDIC contracts. I recommend that you read the "FIDIC 4th - A Practical Legal Guide" by Edward C. Corbett, particularly the commentary of Clause 14 of the Red Book.
Other references can be easily found.

Regards

Joe

Hi Mansour: Such issues have not been seen so far in any arbitration or courts. These are minor issues only relates to prepare EOT baseline schedule to make it logical, not discussed in detail in any Legal Forum.

Jose,
There is another point of view approved schedule is like any other contract document.
What will happen if the consultant or the contractor found a mistake in a civil drawing? Can he construct it and say I have an excuse (It is approved before). I don’t think so!!!
Finally the contractor has to claim for time extinction for this consultant mistake but he must immediately submit new schedule avoiding this miss logic to get the consultant approval for it.

Joe,

I think you should use both.(extension based on approved baseline schedule or extension after breaking the soft links on the longest path?) But there should be an statused baseline schedule i.e. current schedule

Ex. If Finish date of approved baseline schedule is apr 20,2004
And Finish date of statused/current schedule is Apr 27, 2004

And Finish date after breaking soft links is Apr 20,2004
Thus extension of time is equal to 7 days.

It is really important that any basis for extension of time is based on a current schedule.

Suppose the baseline schedule approved by the Consultant contained no serious logical mistakes.
In the assessment of the claim for extension of time, the consultant would ask the Contractor to mitigate delays by de-linking soft or preferential links.
What would you consider the Contractor’s entitlement is: extension based on approved baseline schedule or extension after breaking the soft links on the longest path?
Should the longest path determining the extension be very solid logically, or it should be adopted as is from the impacted schedule?

Joe

Having thought about this a little more!

If I’m Dan the Plastering contractor and I’m given a programme. The only thing I am going to look at is when I need to start an activity and when I need to finish an activity.

Your not going to tell me that Dan has a P3 Planner sat in his office scrutinising the logic links. In the real world he does not.

If he is delayed in starting he will have a right to redress. That is to say if he incurrs any additional expense or needs to seek an extension of time he will be entitled to do so. He must however, be very clear and notify his client in writing at the time that the delay occurs.

If the contractor has conceded on the logic within the original (baselined) programme. Then I think he would find it very hard to claim for an extension of time unless he had agreed by way of correspondence to re-schedule the works with a view to ascertaining the cost/time impact at a later date.

In summary he can only really claim for an extension of time if he had agreed this when the programme of works had changed, if he did not inform his client that he was in delay then I dont see how he can seek recompense retrospectively.

I amcurious however, if the AC units had an impact on the plastering. Were the external windows, doors and all the power supplies/distribution units, a.c ducting etc supposed to be complete aswell ie was this a plaster curing issue ??

Betsr regards
Paul Knighting