Construction Scheduling Games Contractors Play

A construction schedule is a legal document. Once an owner accepts or approves one, it takes on legal status — it can be used to document claims and establish damages. That single fact explains why experienced claims consultants spend considerable time on schedule strategy, and why owners who treat scheduling as an administrative formality consistently find themselves on the wrong side of delay disputes.

This article draws on research by James G. Zack, Jr., Emily Federico, and Stephen Pitaniello of Ankura Construction Forum — a body of work developed over more than five decades and 5,000 construction claims. The core finding is direct: the risk of not requiring, reviewing, and enforcing a rigorous schedule specification far outweighs the legal risk of accepting one. Owners who avoid detailed schedules are not avoiding liability. They are eliminating their ability to defend against claims.

Why Scheduling Is Used as a Claim Tool

A properly developed Critical Path Method (CPM) schedule serves five functions: it ensures adequate planning, facilitates coordination across all project parties, forecasts the time required to complete the work, provides a basis for measuring physical progress, and creates the evidentiary record used to analyze delays and changes.

In practice, a significant portion of contractors do not use scheduling for any of those purposes. A 2010 study by the Chartered Institute of Building found that only 14% of UK contractors used fully linked CPM schedules; 54% relied on simple bar charts with no logic ties. An Australian study put CPM adoption as low as 10%. A 2019 study found that 33% of contractors will not use CPM unless the contract explicitly requires it.

For those contractors, the schedule is not a project management tool. It is a condition precedent to receiving payment and, later in the project, a mechanism for recovering money through change orders and claims.

Some owners respond to this dynamic by avoiding detailed schedules altogether — reasoning that an accepted schedule documents their obligations and creates exposure. That reasoning is backward. If a dispute arises on a project with no credible baseline schedule, the contractor’s claims consultant is free to construct one after the fact, with no contemporaneous record to refute it.

The Games Played in Baseline Schedules

Scheduling gamesmanship begins at the baseline. These are the most common tactics and what owners can do about each one.

Failure to provide a schedule. When no scheduling specification exists, or when contract language says only that the contractor shall “submit a plan for constructing the work,” many contractors simply do not submit a schedule. Without one, the owner cannot detect failures in planning, measure progress against time, or establish what the contractor actually planned to do. At the end of the project, the contractor’s consultant builds a fabricated as-planned schedule designed to prove delay.

Defense: Require a fully linked CPM schedule in the specifications. Tie mobilization payments to baseline submittal and approval, not just to showing up on site.

Inadequate scheduling. A contractor submits a 12-line Gantt chart for a $20 million project. The schedule has no logic, no detail, and no useful information. Its purpose is to satisfy the contract requirement while hiding everything that matters — scope gaps, sequencing problems, resource constraints. It also makes any future delay analysis effectively impossible.

Defense: Specify maximum activity durations (no onsite construction activity exceeding one reporting period, typically 20 to 30 days) and require a dedicated, certified scheduler — someone with PSP or PMI-SP credentials, not a field engineer assigned scheduling as a secondary duty.

“Star Trek” scheduling. The schedule shows only installation activities. There are no submittals, no submittal reviews, no fabrication periods, no delivery activities. Equipment is assumed to materialize on site when needed. The effect of this omission is that the moment any installation activity starts later than scheduled, the contractor has grounds to allege owner-caused delay — even if the delay was caused entirely by the contractor’s own procurement failures, which are invisible in the schedule.

Defense: Require a Work Breakdown Structure that codes submittals, submittal reviews, fabrication, delivery, and installation as separate activities for every major piece of equipment. Provide a master list of required submittals at the pre-construction conference so the contractor cannot claim ignorance.

Phony early completion schedules. Contractors have the legal right to finish early, and some legitimately plan to do so. Others submit early completion schedules they never intend to achieve. The purpose is to establish a baseline completion date significantly ahead of the contract date. When the project finishes on time — not early — the contractor files a “delayed early completion” claim, arguing that the owner’s actions prevented them from achieving the early finish. The claim seeks damages not for finishing late, but for being denied the profit margin that an early finish would have generated.

Defense: Two mechanisms work in combination. First, specify that float is a jointly owned, expiring resource available to both parties — not the exclusive property of the contractor. This makes delayed early completion claims significantly harder to sustain. Second, require escrow bid documents: all bid-time documentation submitted to escrow within 24 hours of bid opening, inadmissible in any later dispute if not included. Escrow bid documents allow the owner to verify whether the contractor actually planned for early completion when they bid the project.

Sequestering float. Float is the time available on non-critical activities before they affect the project completion date. It is a shared project resource, but contractors routinely hide it. The methods are sequential rather than concurrent activity scheduling (artificially lengthening the overall path), inflated activity durations, and the insertion of zero-float milestone constraints that have no contractual basis. The result is a schedule in which every path appears critical. Any owner action — a delayed review, a request to adjust sequencing, a change order — immediately affects the “critical path” and triggers a time extension request.

Defense: Include a non-sequestering of float clause in the scheduling specification, explicitly prohibiting float suppression techniques and stating that their use is grounds for rejecting the schedule submittal. Require major subcontractors — any sub holding more than 5% of contract value — to review and sign off on the baseline. Contractors playing float games typically do not involve their subcontractors, because the same tactics that harm the owner also harm the subs. Requiring sub sign-off surfaces the problem without the owner needing to identify it directly.

The submittal review time trap. If the contract says the owner will review submittals “within a reasonable period of time,” and the contractor’s baseline schedule shows 5-day review durations, the owner faces a significant risk upon accepting that schedule. The accepted schedule has now defined 5 days as reasonable. Any review that takes longer is documented evidence of owner delay.

Defense: Never use “reasonable period of time” in a contract without defining it. Specify a fixed review period — 30 calendar days is a common standard — and specify explicitly that the review clock resets when a resubmittal is received. The owner should not be held to a single review window covering an unlimited number of incomplete or incorrect submittals.

Failure to include constraints. If the contract requires specific phasing, operational sequences, or access restrictions, but those constraints do not appear in the accepted baseline schedule, the contractor can later argue that the owner waived them by accepting a schedule that did not include them. Reimposing the constraints at that point becomes a compensable change.

Defense: List all required constraints and sequences in the bid documents. Include contract language stating that acceptance of the schedule does not waive any contractual requirement, and that in any conflict between the accepted schedule and the contract, the contract governs.

The Games Played in Schedule Updates

No updates. When a specification requires updates only when “major changes” occur — a term that is never defined — updates stop. The contractor has no incentive to document ongoing progress because the updates are not tied to payment. Without updates, all delay analysis must be performed against the original as-planned schedule. That analysis method, known as planned versus actual, is the least reliable forensic method available. It cannot isolate concurrent delay, pacing delay, or problems that are entirely within the contractor’s control.

Defense: Require monthly schedule updates as a condition precedent to monthly progress payments. Cost-load all onsite activities so that the monthly payment is calculated from the accepted update. No update means no billing. No billing means no payment. This is the most direct financial enforcement mechanism available to an owner, and it costs nothing to implement beyond a specification requirement.

Update blackout. A more aggressive version of the same tactic: the contractor stops submitting updates entirely at the point when delay claims are being developed. Silence during the claims period forces as-planned versus actual analysis, removing the owner’s ability to use the project’s own documented history to identify concurrent delay or contractor-caused problems.

Defense: Liquidated damages for late schedule updates, set at the daily cost the owner would incur to hire an outside scheduling consultant to perform the work. The dollar amount is secondary to the principle — late updates have contractual consequences.

Startup and testing omission. The baseline schedule shows nominal time — sometimes a single activity of a few days — for startup and testing of complex systems. When testing takes weeks or months longer than shown, the contractor claims the owner had superior knowledge of the testing requirements and failed to disclose it. On projects involving process equipment, wastewater systems, mechanical plants, or complex commissioning sequences, this is a recurring exposure.

Defense: Owners typically know more about startup and testing requirements than the contractor does. List required testing activities in the specification, estimate the time they will take, and require the contractor to include no less than that estimate in the baseline schedule.

Four Categories of Gamesmanship

All of the above tactics fall into four categories that are worth understanding as a framework:

Information asymmetry — hiding the true state of the project through vague schedules, omitted procurement activities, or undocumented submittals. The contractor knows what is happening; the owner does not.

Time manipulation — engineering the schedule’s clock to the contractor’s advantage through phony early completion dates, artificially short review windows, and the absence of regular updates.

Resource starvation — using preferential sequencing, inflated durations, and zero-float constraints to manufacture a false critical path, eliminating the owner’s schedule flexibility.

Contractual evasion — avoiding accountability through missing baseline submissions, update blackouts during active disputes, and the strategic omission of required constraints.

Understanding which category a tactic belongs to helps identify it earlier. A schedule that shows no float anywhere is not a sign of a well-planned project — it is a sign of resource starvation. A baseline submitted without procurement activities is not an oversight — it is information asymmetry by design.

What Owners Must Do, by Phase

The majority of effective defenses must be established before bidding begins. They cannot be improvised after a dispute develops.

Before bidding: Prepare a realistic pre-bid schedule to establish a defensible contract duration. Write a scheduling specification that is commensurate with the project’s size and complexity. Include joint ownership of float and non-sequestering clauses in the contract. Include the escrow bid documents requirement. Identify all major equipment requiring full procurement chain tracking, and list all required constraints and sequences in the bid documents.

At notice of award: Structure mobilization payments in two steps — the first tied to scheduling and mobilization, the second to baseline schedule approval. Hold a mandatory pre-construction scheduling conference with the contractor’s project manager and dedicated scheduler in attendance. Specify submittal review times explicitly and confirm the clock-reset provision for resubmittals. State in writing that no physical work is authorized and no payment will be processed until the baseline schedule is submitted and approved.

 During construction: Require monthly schedule updates as a condition of payment. Calculate monthly progress payments from the cost-loaded, accepted update. Review every update for preferential logic, sequestered float, inflated durations, and missing constraints. Require subcontractor sign-off. Track resource histograms against planned productivity. Enforce liquidated damages for late update submittals.

Owner responsibility does not end at specification issuance. Reviewing a schedule properly requires the same level of technical rigor as reviewing an engineering submittal. That requires either qualified in-house scheduling staff or an outside consultant with that capability. Issuing a specification and then accepting whatever is submitted is not oversight — it is the absence of it.

Five Principles

The schedule is a legal document. Once accepted, it establishes obligations, defines review windows, and creates the evidentiary record for any future dispute. Treat its review accordingly.

Defenses must be contractual. Float ownership, non-sequestering clauses, escrow bid documents, and update payment linkages must be in the contract before bidding. They cannot be added after the fact.

No update, no payment. Cost-loading the schedule and conditioning monthly payments on accepted updates is the most effective single enforcement mechanism an owner has. It requires no litigation, no confrontation — just consistent application of a contract provision.

Subcontractors are a resource. Schedule games harm subcontractors as well as owners. Requiring major subcontractors to sign off on the baseline and updates uses their self-interest to surface problems the owner might otherwise miss.

The owner’s job does not end at bid. Issuing a specification creates the framework. Enforcing it requires consistent, technically competent review at every update cycle for the life of the project.

This article draws on “Construction Scheduling Games People Play,” a research series by James G. Zack, Jr., Emily Federico, and Stephen Pitaniello of Ankura Construction Forum.