I received an email the other day from a colleague:
“Fred, I need your thoughts. A fairly stringent Government schedule & E-V scheduling spec. is part of the contract documents. The contractor create a baseline schedule that either ignores or violates most of the schedule provisions and does not come close to the EV requirements. The schedule is submitted. The owner says “they are not concerned with the non-conformance,” and approves the schedule. What problems do you see down the line. The spec. incorporates the approved schedule as a contract document.”
I looked at the problem, and there I was again, back in 1980, taking the Bar exam. Oh my!
Let’s start at the top. The schedule submittal (probably per specification section 01310) is, and should be treated as, a shop drawing. If the submitted shop drawing for an elevated slab, or bracing for an excavated trench, was similarly defective, yet was so cavalierly approved, what might be the potential consequence? If the slab collapses injuring third parties, we know the answer. Similarly if the trench collapses injuring an employee of the contractor or even the woman who owns that firm.
Amongst third parties entitled to rely on the schedule are subcontractors who bid the job understanding it would be coordinated with a CPM. Many court cases provide relief to a subcontractor directly from the owner in this circumstance. Even a typical “hold harmless” clause in the prime and flow down contracts will not avail this owner as this appears to go beyond mere negligence and may rather be deemed gross negligence.
The problem does not end here but does continue “down the line.” The words of a contract are always interpreted by a court by looking at the parties’ prior actions relating to similar words. So on the next project to be performed by this contractor, any effort to require more stringent enforcement may be viewed as a change order by this contractor. It gets worse. Other contractors, who are not to be placed at a competitive disadvantage, may also view this and similar specifications by this governmental owner to be similarly enforced, and bid accordingly.
Do any of the attorneys or judges who follow this blog disagree?