Millions of dollars worth of school construction are contracted for every month in Ohio under the auspices of the Ohio Schools Facilities Commission. Instead of using the American Institute of Architects Document A201 or Engineers Joint Contract Documents Committee Document No. C-700, the OSFC has its own General Conditions document for its construction projects. Recently the OSFC made revisions to its General Conditions. These changes should interest every contractor, architect and construction manager performing school construction in Ohio, and they are the topic of this month’s column.

The Edge Program and Other New Provisions
Many of the OSFC’s changes are minor, such as a new, express requirement in paragraph GC 1.3.1 that all notices be given in writing. 

Some changes are more substantive. The State of Ohio’s EDGE Program (which stands for “Encouraging Diversity, Growth and Equity”) now makes an appearance. Under paragraph GC 4.1.8, making a “good faith effort to locate and engage the services of EDGE business enterprises in connection with the project” becomes a factor to consider when evaluating bidder responsibility. This begs a question, though—how can the OSFC or a school district gauge this parameter when evaluating bids, especially since paragraph GC 9.1.2.4 requires EDGE allocations to be noted post-bid, in the Contractor’s Contract Cost Breakdown, not in anything submitted by the bidder.

Indemnification
Indemnification provisions can include the most significant risk-shifting language of any contract, and here the OSFC has made a change to deal with the pitfalls of multiple prime contracting. Paragraph GC 4.1.2.3 expressly requires the Contractor to indemnify the school district and OSFC from all claims from other Prime Contractors arising out of the Contractor’s impact on those other Prime Contractors. 

Project Scheduling
Despite the importance of indemnification, the changes to the OSFC General Conditions that are likely to have the most impact are those changes dealing with the project schedule. Here, in paragraph GC 4.3, the OSFC has made numerous fundamental changes to how the project schedule is created and maintained.

The Construction Manager still prepares the schedule, but the requirements of that schedule are now spelled out in much more detail in paragraph GC 4.3.1.1, in essence codifying the creation of a state-of-the-art critical path method schedule “with the cooperation of the Contractors.” Requirements include time allowances for procurement activities (shop drawing preparation and approval, fabrication and delivery), time allowances for project close-out activities and total float, free float and early and late starts and finishes for each task. “Total float” refers to the length of time, along a given network path, that the actual start and finish of an activity can be delayed without delaying the project completion date, while “free float” means the length of time the start of an activity can be delayed without delaying the start of a successor activity.

The Construction Manager has 10 days from the date of the Notice To Proceed to prepare the proposed schedule. Each prime contractor then has 10 days after receipt of the proposed schedule to give its input. But here is where it gets tricky. Paragraph GC 4.3.1.2 essentially requires each Contractor to verify that the schedule makes sense. (The word “verification” appears five times.) An enforcement provision is included that deems the schedule accepted if a Contractor fails to “provide this information,” and bars the Contractor from making any claim for additional time based on the schedule. 

But if there never was clear agreement between a Contractor and Construction Manager when the schedule was first created, it is hard to imagine that same Contractor later verifying that the schedule makes sense. So in this way the OSFC’s new scheduling provisions suffer from the same dilemma of all other construction contracts—if the Construction Manager and Contractor cannot agree to a schedule at the beginning of a project, their disagreement will probably become only sharper over time. Couple this with the fact that many school construction contracts have very demanding schedules, and the new scheduling provisions will probably be put to the test.

The proposed schedule becomes the initial Construction Schedule once Contractor verification is received. Under paragraph GC 4.3.1.3, the initial Construction Schedule must be provided to each Contractor within 20 days of Contractor verification or within 40 days after Notice To Proceed is issued. Each Contractor then has 5 days to express its concurrence with the initial Construction Schedule. Failure to do so constitutes acceptance and again bars the Contractor from making a claim based upon the schedule.

Once the Contractors buy in to the initial Construction Schedule, the Architect has five days to review and approve it and submit it to the school district, or else 10 days to disapprove it and return it to the Construction Manager with recommendations for improvements.

Updating the schedule is also handled in great detail in paragraph GC 4.3.5.1. Each month the Construction Manager is to solicit each Contractor for detailed information including actual start dates for new activities, actual finish dates for completed activities, and remaining durations for ongoing activities. The Contractor has two days to respond. Failure to provide the requested information gives the school district and the OSFC the right to withhold payments. The Construction Manager has three days to issue an updated schedule after receipt of necessary information from the Contractor. The Contractor has two days to acknowledge receipt of the updated schedule.

Paragraph GC 4.3.6 deals with putting the project back on schedule. When the Construction Manager sees the schedule slipping (i.e., late finish dates becoming impossible to achieve), the Construction Manager is given a free hand to put the project back on track (“develop possible courses of action”). The Contractors “shall cooperate in providing all information requested by the Construction Manager.” Again, a failure to cooperate in a timely manner bars the Contractor from making a request for time extension or any other demand “related in any fashion to information, and its use in developing the plans required under this provision, that otherwise should have been provided by the Contractor.”

Conclusion
The scheduling aspects of OSFC’s recent revisions to its General Conditions are ambitious. Contractors and Construction Managers will now have to pay even more attention to this always-critical task. With luck, the results will be worth the extra effort.