LEGAL COUNSEL & A/Es
Although the AIA contract documents remain the most prevalent among project stakeholders, their boilerplate language regarding the contractor’s construction schedule’s creation and management (A-201-2017) leaves owners unempowered to require the contractor to remedy schedule deficiencies that invariably impact the project’s delivery.
Architects bear the first brunt of this burden when project schedules slip, liability disagreements arise, and AIA documents pin architects as the initial arbitrator between the owner and contractor, prior to the contract’s formal dispute resolution process. Understandably, architects are often uncomfortable to render published opinions on schedule disputes due to potential rapport impacts with their clients and because schedule analysis isn’t a traditional proficiency in their wheelhouse. That’s why shrewd architects avert the “Judgement of Solomon” dilemma by retaining Spectrum to conduct schedule analysis on their behalf when called upon by contract terms to arbitrate the parties’ schedule disputes.
Construction contract attorneys also benefit from Spectrum’s advisory services. Executed AIA contract agreements that lack incorporated owner’s schedule protections are typically due to owner’s construction manager’s omission to translate practical project management experience into contract terms and from legal counsel’s lack of project management experience to intuit these protections are necessary in the first place.
Notwithstanding the above, construction contract attorneys stand to benefit more so from Spectrum’s advisory services when representing their owner clients in formatting the contract’s terms and conditions. The A-201’s boilerplate articles §3.10.1, §3.10.2 and §6.1.3 are gaping with undefined schedule management considerations that require tailored engineering relative to the project’s complexity, risks and owner’s sophistication. Far too often, basic considerations such as the owner’s right to the contractor’s native digital schedule file are missing from the contract’s schedule criteria and in select cases generate discord between the contractor and owner that could have been avoided when contractor maintains PDF format submissions satisfy its obligation while intently degrading owner’s ability in schedule analysis without the native schedule file. Although the native files are ultimately discoverable later, these and numerous other contractor schedule management deficiencies that surface throughout the project’s construction and should prompt contractor’s swift remedy become difficult to resolve when schedule management has been unintuitively drafted as a one-way transaction in which the contractor submits its monthly schedule and pay application, but where the owner/CM has no contractual recourse to reject the schedule submission and to require the contractor to revise and resubmit for owner’s approval. Not surprisingly, as owners efforts to beget remedy in contractors’ schedule management are handicapped by the absence of embedded contractual protections their assessment of the value derived from legal counsel’s work product changes, and in some instances in pursuit of new legal counsel representation.
The prerequisite for owner’s construction schedule protections in formatted AIA-A201 contract documents stems from a multitude of acquired project management lessons, post contract execution, that exemplify the prominence of the construction schedule’s necessary utility both as a management tool throughout construction and as a legacy instrument. Spectrum partners with legal counsel and their owner clients to advise on each project’s unique circumstances and to tailor a scheduling criteria into contractor’s RFP packages and into contract agreements to provide owners with their desired level of protections in the construction schedule’s creation and maintenance. The outcomes of these collaborations engineer resultants for greater owner control and satisfaction that are often perceived by owners indicative of legal counsel’s value-added acumen.
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