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Grammar Matters in Contracts

Construction Science


About 15 years ago I sat in a meeting room in San Francisco filled with quite a few people arguing about grammar. There were other reasons for arguing, given that it was a major construction claim. But there was one element of the claim that depended on grammar. This was a high-rise building. The contract included an intermediate milestone that stated, to the effect: "Contractor shall complete work up to the 8th floor by (date)."

The intermediate milestone had liquidated damages associated with the date, which is of course why anyone cared all that much. The owner argued that the milestone date included the 8th floor. The contractor believed the milestone only covered up to the bottom of the 8th floor, which is to say it included the 7th floor but not the 8th floor.

Then one of the (many) attorneys in the room asked for my opinion. Simple. My mom was an English major and I knew exactly what she should would have said. To avoid any misunderstanding, the contract should have read:

"Contractor shall complete work up to and including the 8th floor by (date)."

That was easy, right? But all too often we write things that are actually a bit ambiguous. Not intentionally, of course, but it happens. A lot. While construction contracts (and contracts in general) contain a lot of boilerplate language that presumably has been vetted, the sentence containing the intermediate milestone was clearly a one-off.

I think about this a lot because every day I see examples. In Primavera P6 Professional, the Data Date defaults to 12 am. The significance? If the time of day is left "as is", then progress should not be recorded on the day of the Data Date. The time of day can be modified, but it is something I have to keep in mind. Progress on the Data Date belongs to the next update.

For the same reason, I dislike the Must Finish By date in P6. It defaults to 12 am. If this date represents the contractual finish date of the project, it means we will be considered "late" if we work at all on that day. Better to use a constraint on the last activity in the schedule; activity constraints adopt the calendar assigned to the activity.

Better yet, Primavera P6 has an activity constraint that is perfect for the last activity in the schedule:

Finish On or Before

My mom would approve! No ambiguity in that statement. Primavera P6 has several other constraints as well, but this one is my favorite. I could be more than satisfied with just this one constraint in a typical schedule.

How we describe an activity in a schedule matters as well. The scheduling specifications may require a verb in the description. Most of us probably use a verb already without really thinking about it, but consider that an activity described as "storm sewer piping" could be referring to procuring the material, removing the material, or installing the material.

(To avoid any confusion I have always placed procurement activities in a separate part of the schedule, but even today I see procurement activities next to field activities).

Yes, some of this is pretty minor. Until you have a group of people sitting in a room arguing over grammar!