I don’t think it is a matter of approach – as Uri suggests – I think it is a matter of what the obligations of the parties are under the specific Contract terms.
If the deliverables are subject to acceptance by the Owner (or his Representative), then the giving of such acceptance is an obligation of the Owner (or his representative) once the specific deliverable is acknowledged as being acceptable. Failure to provide such acceptance by the Owner would make the acceptance to be “deemed” to be so by the Owner.
If the Contract does not require specific acceptance, but merely to be provided “For Information Only”, the Contractor is not obliged to take on board the Owner’s comments.
It isn’t a case of being with the pitbulls or the pussies; it’s a case of what the Contract requires and carrying out these obligations (or not, as the case may be!)
Programme durations and sequences should be tied back to project method statements - thereby giving a method of determining whether the durations were reasonable or not.
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20 years 10 months
Member for20 years10 months
Submitted by Don MacDonald on Tue, 2005-01-11 08:50
I understand what youre saying and there have been many times when Ive been on both sides of the fence. In some cases I have taken sides with a contractor in order to explain how an owner has been unreasonable. Other times Ive taken the owners side of the dispute in order to ensure that their best interests are being considered.
Youre right that its simply a matter of approach.
I guess that in some cases what I see is an "Owner Knows Best" approach and this is not always the case. Ive had schedules submitted that I thought were highly unlikely yet an experienced and motivated contractor has managed to get them done. Was the temptation to reject the schedule there? Very much so.
My concern is that (and probably better posted in another thread if wed like to discuss is) if the onwer feels that a schedule is unlikely and rejects it, yet the contractor is convinced that this same schedule can be accomplished then where does the due diligence of pointing out concerns regarding the schedule end and interruption begin?
As I said in my earlier message, I think its important to treat the contracting industry as knowledgeable people in their field and if, after discussing and pointing out potential unreasonable schedules, a contractor still wishes to proceed based on this schedule then I think its up to the owner to document how and why this unreasonable schedule could not or has not been met.
The keyword here is unreasonable. A schedule that is downright impossible due to clear conflicts is another story.
Its a question of approach - do you see yourself standing on the same side of the fence WITH the Contractor - and the pitbulls (RISKS TO THE PROJECT) on the other side, or do you see yourself and the Contractor in the opposing sides of the fence (with the Contractor being the pitbull)???
But seriously, for the sake of the project and in order to act fairly towards the contractor you have to decide one way or the other.
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20 years 10 months
Member for20 years10 months
Submitted by Don MacDonald on Mon, 2005-01-10 01:03
I agree that it is a "hands off" approach to the situation. This being said, my concern on either "accepting" or "rejecting" the Critical Path Schedule is that if formally accepted youve basically bought in to the schedule that has been submitted. Thus youve possibly agreed to an unreasonable schedule and set yourself up for a claim based on unreasonable timeframes, production rates etc...
On the other hand, by rejecting the schedule outright you leave yourself open to the thought that you as the owner or representative of the owner have forced the Contractor into a schedule of your choosing and again have set yourself up for a claim.
If however you take the approach that the contractor is a knowledgable person who can schedule his/her own operations then the schedule becomes the contractors risk and not the owners. Its important to question any schedule that seems unreasonable but only if it appeared completely off the wall impossible would I be comfortable rejecting it outright.
By questioning the validity of certain portions of the schedule such as the incorporation of timing constraints, environmental constraints, reasonable production rates and equipment/labour resources etc. etc. etc. you can still leave the risk of a poorly planned schedule in the hands of the scheduler and not take responsibility for directing the work schedule.
Sometimes its better to be on the fence then in the yard with the pitbull.....
You are representing a typical Principal approach of sitting on the fence and not commiting to a clear view regarding the reasonableness of the Contractors Programme.
This approach increses the uncertainty in which the Conractor operates, and is also discouraged by the SCL in their famous Protocol.
under most types of standard Contracts the Principal or his repersantative (the Super) must either accept or reject the Contract Programme within a prescribed period.
Member for
20 years 10 months
Member for20 years10 months
Submitted by Don MacDonald on Sun, 2005-01-09 13:20
As a Contract Administrator in Ontario Canada it is interesting to see that the problems we face here are problems that are faced all over. The term "reasonable schedule" comes up frequently in highway construction and from the view of a person who represents the owner 95% of the time I try never to either "accept" or "reject" the contractors schedule. When faced with what I consider to be an "unreasonable" schedule that has been submitted as the contractors as-bid idea on how they intend to build the project, it may be better to question how the contractor intends to actually bid this seemingly unreasonable schedule. For example, if a contractor were to state in the as-bid or baseline schedule that they intended on performing 100,000 m3 of earth excavation in a mere 5 days then the question would be asked as to how many excavators, trucks etc..the contractor intends on utilizing to achieve this inflated production rate. If after committing to an equally unreasonable amount of equipment to achieve the unreasonable production the contractor does not follow through it would be extremely difficult for that contractor to claim a delay based on the schedule since in reality the unreasonable production rate was never achievable. As such, I am neither responsible for accepting or rejecting the contractors schedule, only for questioning how they intend to perform it and monitoring whether the commitments they have made under the schedule have been followed through on.
I think that you are only half-right with regard to a Schedule being unreasonable. As you yourself pointed out, a schedule that turns out to be unreasonable may well have looked reasonable at the start of the project. I think it would be very strange for the parties to intentionally and knowingly agree to an “unreasonable” schedule at the outset.
As to the Contract Sum, the element of “reasonableness” will usually prevail: the Contractor will agree to a Contract Sum because he believes that it reasonably represents the extent and nature of the risks that he has to take, and the Owner/Client will agree to it because he will consider that it is a reasonable amount to pay for the completed project. Consequently – and as you reasonably pointed out – the Contract Sum is fixed whether it turns out to be unreasonable or not (except where it may be fraudulent!)
That just confirms that we all be careful about the terms that we use and we shouldnt assume that the same term - such as "As-built Critical Path" - means the same thing to all people.
A contractor would use either the agreed schedule or a corrected schedule, whichever gave hom the best advantage. Similarly, an employer would use the opposite.
If the dispute was in the Court/Arbitration arena, and I was appointed as the Expert; then I would put forward the results of the two alternatives, as the matter of which is the proper schedule to use to quantity the delay is a contractual/legal issue on which both each partys lawyers can put forward legal submissions
Roger Gibson
Member for
21 years 5 months
Member for21 years6 months
Submitted by Maria Ahlberg on Mon, 2004-12-13 03:51
What you call a baseline I call a target-0 project. When we have started up a project, and the schedule is set for the first time, equals the baseline/target-0 project. We never alter the information in this. We use it to compare with the up to date schedule.
In parallell with this work we have a separate schedule (which we call a baseline, confusing therminology). This schedule is used when we are starting up our next project. The "baseline" I wanted to have up to date, was this "to be the next project" schedule.
I apologise for maybe confusing things even more, but it is early morning here and also "Lucia".
I guess this is more a legal matter: What about the possibility that the parties agreed to the schedule even if it was not reasonable? the schedule might have looked reasonable at the time of execution.
I believe in other part of the Contract (for example the contract sum), if the parties agreed they are held to this agreement even if it it not reasonable (unless it is illegal etc.)
Well, I guess the first question is from which perspective are you asking?
If youre the one producing the schedule, obviously it is encumbent upon you to regularly inspect your schedule and revise your assumptions as you go, making sure to document any significant changes. (Failure to document could prove damaging during litigation)
As the owner/client, you do bear some responsibility for vetting the schedule and raising questions on any "unreasonable" matters. You cant go to court and say "Well, if he says he can build my tower in five days, who am I to question." Of course the burden is lessened by virtue of the fact that you dont know the schedulers assumptions unless they are provided in a Basis of Schedule.
To my mind a Baseline Schedule is exactly that : it is a schedule that acts as a base against which future schedules can be measured. The Baseline Schedule itself should remain intact and not be altered or updated. It is the difference between the Baseline Schedule and the As-Built Schedule that usually forms the basis of a claim for EOT; hence its importance.
Of course, the Baseline Schedule will also form the basis of progress updates, but it should in itself remain unaltered. As Jason points out it should be a “reasonable” representation of the plan to execute the work through to completion , but what should be done if – as Roger says – there are errors and mistakes in the (approved) Baseline Schedule?
We could also discuss “reasonable” but as David has mentioned, it is already Friday afternoon here in Europe!!
I would caution against trying to keep the baseline "up to date". In most cases, clients will not (should not) accept a baseline that already contains update information as they risk accepting poor performance into the approved baseline. There have been occaisions where I rejected baseline submissions for this reason alone.
Baseline schedules should be "reasonable" representations of the initial plan for the completion of work. I think it goes without saying that this will be subject to change, and can be addressed with a narrative describing and justifying the change. If reasonable, there is no compelling reason for the client to reject it. Moreover, should the schedule end up in litigation, reasonable documented changes to the baseline made during updates are typically accepted by the court. It is understood that we are only human and will sometimes need to change our mind "once better information becomes available."
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23 years 6 months
Member for23 years7 months
Submitted by David Bordoli on Fri, 2004-12-10 11:04
And I am not sure if, apart from outrageously wrong durations, we can say if an activity is too long or too short, it all depends on the method and resources then all the other myriad of things that can affect activity duration. It only in hindsight that we can say, because it wasn’t completed as planned, that it was too long or too short?
The important bit, in my mind is to monitor and determine how long something did actually take. On an ‘accurate programme’ (whatever one of those is) I would expect there to be ‘swings and roundabouts’ when comparing planned with actual activity durations. Only when it is all swings or all roundabouts can we start to ask went wrong and if it’s a consistent going wrong or going well at least we can use that knowledge for forecasting (or predicting!). This means that, so long as we regularly monitor and analyse our programmes even those with durations that are too long or too short can be of use.
Its Friday and I don’t think I have articulated myself very well. I think we are coming up with some philosophical questions here that hopefully someone will address in their PEO papers – and that there is a forum to discuss, constructively criticise and support.
David
Member for
21 years 5 months
Member for21 years6 months
Submitted by Maria Ahlberg on Fri, 2004-12-10 10:35
With a baseline schedule -do you mean the schedule you use to build a schedule in the beginning of a new project? (instead of making a schedule from scratch)
If so, even a basline schedule has to be up to date, otherwise you loose to much time adjusting it in the bebinning of a project.
In tying your comments to an even earlier thread about obtaining the approval of a Baseline Schedule, I would also add that just because a Baseline (or any other) Schedule is “Approved”, it doesn’t make it right!!
Many times I have had to adjust an Approved Baseline Schedule for delay purposes when the schedule has been incorrect, but nevertheless Approved!
Member for
21 years 4 monthsRE: Reasonableness of a Baseline Schedule
I don’t think it is a matter of approach – as Uri suggests – I think it is a matter of what the obligations of the parties are under the specific Contract terms.
If the deliverables are subject to acceptance by the Owner (or his Representative), then the giving of such acceptance is an obligation of the Owner (or his representative) once the specific deliverable is acknowledged as being acceptable. Failure to provide such acceptance by the Owner would make the acceptance to be “deemed” to be so by the Owner.
If the Contract does not require specific acceptance, but merely to be provided “For Information Only”, the Contractor is not obliged to take on board the Owner’s comments.
It isn’t a case of being with the pitbulls or the pussies; it’s a case of what the Contract requires and carrying out these obligations (or not, as the case may be!)
Stuart
www.rosmartin.com
Member for
22 years 4 monthsRE: Reasonableness of a Baseline Schedule
Programme durations and sequences should be tied back to project method statements - thereby giving a method of determining whether the durations were reasonable or not.
Member for
20 years 10 monthsRE: Reasonableness of a Baseline Schedule
Uri,
I understand what youre saying and there have been many times when Ive been on both sides of the fence. In some cases I have taken sides with a contractor in order to explain how an owner has been unreasonable. Other times Ive taken the owners side of the dispute in order to ensure that their best interests are being considered.
Youre right that its simply a matter of approach.
I guess that in some cases what I see is an "Owner Knows Best" approach and this is not always the case. Ive had schedules submitted that I thought were highly unlikely yet an experienced and motivated contractor has managed to get them done. Was the temptation to reject the schedule there? Very much so.
My concern is that (and probably better posted in another thread if wed like to discuss is) if the onwer feels that a schedule is unlikely and rejects it, yet the contractor is convinced that this same schedule can be accomplished then where does the due diligence of pointing out concerns regarding the schedule end and interruption begin?
As I said in my earlier message, I think its important to treat the contracting industry as knowledgeable people in their field and if, after discussing and pointing out potential unreasonable schedules, a contractor still wishes to proceed based on this schedule then I think its up to the owner to document how and why this unreasonable schedule could not or has not been met.
The keyword here is unreasonable. A schedule that is downright impossible due to clear conflicts is another story.
Best Regards,
Don
Member for
22 years 5 monthsRE: Reasonableness of a Baseline Schedule
Don,
Its a question of approach - do you see yourself standing on the same side of the fence WITH the Contractor - and the pitbulls (RISKS TO THE PROJECT) on the other side, or do you see yourself and the Contractor in the opposing sides of the fence (with the Contractor being the pitbull)???
But seriously, for the sake of the project and in order to act fairly towards the contractor you have to decide one way or the other.
Member for
20 years 10 monthsRE: Reasonableness of a Baseline Schedule
Hello Uri,
I agree that it is a "hands off" approach to the situation. This being said, my concern on either "accepting" or "rejecting" the Critical Path Schedule is that if formally accepted youve basically bought in to the schedule that has been submitted. Thus youve possibly agreed to an unreasonable schedule and set yourself up for a claim based on unreasonable timeframes, production rates etc...
On the other hand, by rejecting the schedule outright you leave yourself open to the thought that you as the owner or representative of the owner have forced the Contractor into a schedule of your choosing and again have set yourself up for a claim.
If however you take the approach that the contractor is a knowledgable person who can schedule his/her own operations then the schedule becomes the contractors risk and not the owners. Its important to question any schedule that seems unreasonable but only if it appeared completely off the wall impossible would I be comfortable rejecting it outright.
By questioning the validity of certain portions of the schedule such as the incorporation of timing constraints, environmental constraints, reasonable production rates and equipment/labour resources etc. etc. etc. you can still leave the risk of a poorly planned schedule in the hands of the scheduler and not take responsibility for directing the work schedule.
Sometimes its better to be on the fence then in the yard with the pitbull.....
Member for
22 years 5 monthsRE: Reasonableness of a Baseline Schedule
Hi Don,
You are representing a typical Principal approach of sitting on the fence and not commiting to a clear view regarding the reasonableness of the Contractors Programme.
This approach increses the uncertainty in which the Conractor operates, and is also discouraged by the SCL in their famous Protocol.
under most types of standard Contracts the Principal or his repersantative (the Super) must either accept or reject the Contract Programme within a prescribed period.
Member for
20 years 10 monthsRE: Reasonableness of a Baseline Schedule
As a Contract Administrator in Ontario Canada it is interesting to see that the problems we face here are problems that are faced all over. The term "reasonable schedule" comes up frequently in highway construction and from the view of a person who represents the owner 95% of the time I try never to either "accept" or "reject" the contractors schedule. When faced with what I consider to be an "unreasonable" schedule that has been submitted as the contractors as-bid idea on how they intend to build the project, it may be better to question how the contractor intends to actually bid this seemingly unreasonable schedule. For example, if a contractor were to state in the as-bid or baseline schedule that they intended on performing 100,000 m3 of earth excavation in a mere 5 days then the question would be asked as to how many excavators, trucks etc..the contractor intends on utilizing to achieve this inflated production rate. If after committing to an equally unreasonable amount of equipment to achieve the unreasonable production the contractor does not follow through it would be extremely difficult for that contractor to claim a delay based on the schedule since in reality the unreasonable production rate was never achievable. As such, I am neither responsible for accepting or rejecting the contractors schedule, only for questioning how they intend to perform it and monitoring whether the commitments they have made under the schedule have been followed through on.
Member for
21 years 4 monthsRE: Reasonableness of a Baseline Schedule
Uri,
I think that you are only half-right with regard to a Schedule being unreasonable. As you yourself pointed out, a schedule that turns out to be unreasonable may well have looked reasonable at the start of the project. I think it would be very strange for the parties to intentionally and knowingly agree to an “unreasonable” schedule at the outset.
As to the Contract Sum, the element of “reasonableness” will usually prevail: the Contractor will agree to a Contract Sum because he believes that it reasonably represents the extent and nature of the risks that he has to take, and the Owner/Client will agree to it because he will consider that it is a reasonable amount to pay for the completed project. Consequently – and as you reasonably pointed out – the Contract Sum is fixed whether it turns out to be unreasonable or not (except where it may be fraudulent!)
Cheers,
Stuart
www.rosmartin.com
Member for
21 years 4 monthsRE: Reasonableness of a Baseline Schedule
Hi Maria,
That just confirms that we all be careful about the terms that we use and we shouldnt assume that the same term - such as "As-built Critical Path" - means the same thing to all people.
Cheers,
Stuart
www.rosmartin.com
Member for
24 years 5 monthsRE: Reasonableness of a Baseline Schedule
Uri,
Good point. It depend on the circumstances.
A contractor would use either the agreed schedule or a corrected schedule, whichever gave hom the best advantage. Similarly, an employer would use the opposite.
If the dispute was in the Court/Arbitration arena, and I was appointed as the Expert; then I would put forward the results of the two alternatives, as the matter of which is the proper schedule to use to quantity the delay is a contractual/legal issue on which both each partys lawyers can put forward legal submissions
Roger Gibson
Member for
21 years 5 monthsRE: Reasonableness of a Baseline Schedule
Stuart
What you call a baseline I call a target-0 project. When we have started up a project, and the schedule is set for the first time, equals the baseline/target-0 project. We never alter the information in this. We use it to compare with the up to date schedule.
In parallell with this work we have a separate schedule (which we call a baseline, confusing therminology). This schedule is used when we are starting up our next project. The "baseline" I wanted to have up to date, was this "to be the next project" schedule.
I apologise for maybe confusing things even more, but it is early morning here and also "Lucia".
Member for
22 years 5 monthsRE: Reasonableness of a Baseline Schedule
I guess this is more a legal matter: What about the possibility that the parties agreed to the schedule even if it was not reasonable? the schedule might have looked reasonable at the time of execution.
I believe in other part of the Contract (for example the contract sum), if the parties agreed they are held to this agreement even if it it not reasonable (unless it is illegal etc.)
Member for
21 yearsRE: Reasonableness of a Baseline Schedule
Well, I guess the first question is from which perspective are you asking?
If youre the one producing the schedule, obviously it is encumbent upon you to regularly inspect your schedule and revise your assumptions as you go, making sure to document any significant changes. (Failure to document could prove damaging during litigation)
As the owner/client, you do bear some responsibility for vetting the schedule and raising questions on any "unreasonable" matters. You cant go to court and say "Well, if he says he can build my tower in five days, who am I to question." Of course the burden is lessened by virtue of the fact that you dont know the schedulers assumptions unless they are provided in a Basis of Schedule.
Member for
21 years 4 monthsRE: Reasonableness of a Baseline Schedule
Maria
To my mind a Baseline Schedule is exactly that : it is a schedule that acts as a base against which future schedules can be measured. The Baseline Schedule itself should remain intact and not be altered or updated. It is the difference between the Baseline Schedule and the As-Built Schedule that usually forms the basis of a claim for EOT; hence its importance.
Of course, the Baseline Schedule will also form the basis of progress updates, but it should in itself remain unaltered. As Jason points out it should be a “reasonable” representation of the plan to execute the work through to completion , but what should be done if – as Roger says – there are errors and mistakes in the (approved) Baseline Schedule?
We could also discuss “reasonable” but as David has mentioned, it is already Friday afternoon here in Europe!!
Cheers,
Stuart
www.rosmartin.com
Member for
21 yearsRE: Reasonableness of a Baseline Schedule
I would caution against trying to keep the baseline "up to date". In most cases, clients will not (should not) accept a baseline that already contains update information as they risk accepting poor performance into the approved baseline. There have been occaisions where I rejected baseline submissions for this reason alone.
Baseline schedules should be "reasonable" representations of the initial plan for the completion of work. I think it goes without saying that this will be subject to change, and can be addressed with a narrative describing and justifying the change. If reasonable, there is no compelling reason for the client to reject it. Moreover, should the schedule end up in litigation, reasonable documented changes to the baseline made during updates are typically accepted by the court. It is understood that we are only human and will sometimes need to change our mind "once better information becomes available."
Member for
23 years 6 monthsRE: Reasonableness of a Baseline Schedule
And I am not sure if, apart from outrageously wrong durations, we can say if an activity is too long or too short, it all depends on the method and resources then all the other myriad of things that can affect activity duration. It only in hindsight that we can say, because it wasn’t completed as planned, that it was too long or too short?
The important bit, in my mind is to monitor and determine how long something did actually take. On an ‘accurate programme’ (whatever one of those is) I would expect there to be ‘swings and roundabouts’ when comparing planned with actual activity durations. Only when it is all swings or all roundabouts can we start to ask went wrong and if it’s a consistent going wrong or going well at least we can use that knowledge for forecasting (or predicting!). This means that, so long as we regularly monitor and analyse our programmes even those with durations that are too long or too short can be of use.
Its Friday and I don’t think I have articulated myself very well. I think we are coming up with some philosophical questions here that hopefully someone will address in their PEO papers – and that there is a forum to discuss, constructively criticise and support.
David
Member for
21 years 5 monthsRE: Reasonableness of a Baseline Schedule
With a baseline schedule -do you mean the schedule you use to build a schedule in the beginning of a new project? (instead of making a schedule from scratch)
If so, even a basline schedule has to be up to date, otherwise you loose to much time adjusting it in the bebinning of a project.
cheers
Member for
21 years 4 monthsRE: Reasonableness of a Baseline Schedule
Roger,
In tying your comments to an even earlier thread about obtaining the approval of a Baseline Schedule, I would also add that just because a Baseline (or any other) Schedule is “Approved”, it doesn’t make it right!!
Many times I have had to adjust an Approved Baseline Schedule for delay purposes when the schedule has been incorrect, but nevertheless Approved!
Cheers,
Stuart
www.rosmartin.com