...suspend delay, or accelerate, in whole or in part, the commencement or execution of Trade Contractor’s Work or any portion thereof or to vary the sequence thereof, to reasonably decide the time, order and priority of the various portions of Trade Contractor’s Work, and all other matters relating to the Project. As the Project Progresses, [Construction Manager] also shall have the right to modify the time, order and priority of the various portions of Trade Contractor’s Work, in order to respond to job conditions and/or achieve timely completion of the entire Project.

“Trade Contractor shall not be entitled to any additional compensation for decisions or changes made by [Construction Manager] pursuant to this Section 9.4 except as provided in Section 9.7 [regarding Claims].”

Among other bases, the court analyzed the Rescheduling Clause in conjunction with provisions implied by law and the facts of the particular case. In addition to the express term that construction manager “reasonably decide the time, order and priority of [subcontractor’s] work,” the EME court found that the subcontract contained two implied conditions under Florida law.

The first was the “implied covenant of good faith and fair dealing.” The second was “an implied obligation not to hinder or obstruct performance [and] an implied obligation not to knowingly delay unreasonably the performance of duties under the contract.”

In addition to citing Florida cases for these propositions, the EME court cited the Illinois decision in Amp-Rite Electric Co. v. Wheaton Sanitary District, 580 N.E.2d 622, 637 (Ill. App. Ct. 2d Dist. 1991).

Applying these implied conditions to the facts (too long to discuss here), EME concluded:

“[Construction Manager] was obligated to exercise its discretion in scheduling the Project reasonably and in good faith, and not in a way that would hinder or obstruct [subcontractor’s] performance of its work on the Project. . . . Whatever discretion [Construction Manager] had under [the Rescheduling Clause] was clearly exceeded.

“Accordingly, the limitations of [the Rescheduling Clause] cannot shield [Construction Manager] from liability for its breach of its contractual obligations to schedule and coordinate the work on the Project.” EME, 2009 Bankr. LEXIS 2374, * 211-12.

The EME court awarded the electrical subcontractor $6,376,000 under a modified total cost methodology. The EME case teaches that implied conditions might be read to limit the reach of an express contractual provision.