Vol. 9 No. 12		December 1990

Here is how it shows up in the owner's draft: "Time is of the essence in the performance of services under this Agreement." It doesn't sound like that big a deal. The project schedule is important to the owner, and your cooperation is badly needed. Of course you will cooperate. The owner has a great deal riding on that schedule.

Not quite so fast. "Time is of the essence..." is not about cooperating in a good faith effort to help your client make a lot of money. It is about the extent to which you are willing to assume responsibility for the consequences of falling short of that goal.

Neither rain, not sleet, nor hail, nor snow will keep the mail from getting through (or so the legend goes), but a plane crash might. You may be willing to exert every reasonable effort, even superhuman effort, to meet the owner's schedule, but in the complex environment of a construction project, with its pick-up team of players driven by diverse and, often, hidden agendas, your efforts may pale in significance in the overall course of events. Then, too, there is always the unsettling possibility that you may find yourself facing a Hobson's choice: "Something seems amiss. Do we stay on schedule and press on, or do we rethink?"

Lawyers have a very useful tool at their disposal. Most of the rest of us have never seen it. It is called Black's Law Dictionary, a compendium after all phrases which have been clearly defined in the law. "Time is of the essence..." can be found there.

It means that the timeliness of your performance is a contractual consideration of vital importance. Failure to design in strict accordance with an agreed upon schedule, a response to requests for information in anything less than the most prompt and timely fashion, a contribution to confusion and delay on the site-any such lapse on your part could represent a material breach of your agreement. If so, the owner may be relieved of the obligation to pay your fees. If damages arise from your breach, you could be liable for those damages. Never mind the fact that the law requires only that you act with reasonable promptness. If your contract requires something more, you will be expected to deliver something more.

Is it reasonable for you to be asked to place time on a pedestal of such importance? Not if the schedule interferes with the exercise of usual and customary professional care. It is an impossible conflict, an unrelenting demand for performance forced by the inexorable flow of sand toward the bottom of the glass. Professional judgments are not made that way-at least not those likely to fall consistently within the parameters of reasonable care.

The choice is yours, but it is truly a Hobson's choice: Breach your contract and suffer the consequences, or play fast and loose with the integrity of the project and the health and safety of the public. There is no choice. Because Ifs There

Why, then, would attorneys for your clients make such a demand? They know what "Time is of the essence..." means, and they will not hesitate to incorporate it into the contracts they draft. Indeed, many will insist it is a nonnegotiable requirement, perhaps without understanding that their attempt to impose this risk on you is not only contrary to your bests interests, but to those of the owner, as well. You do, after all, serve the same client, and building a structure that does not fall down is a goal presumably everyone can agree upon.

Some words and phrases are so readily at hand in law offices that they come to be used indiscriminately. "Of every kind, nature, and description..." is an all-time favorite. "Time is of the essence..." is another. In a professional services agreement, neither should be left unchallenged. "Could we stop for a moment and explore just what it is we are trying to accomplish here?" Clarity of intent makes for workable agreements, and agreements which serve their purposes best are those which never have to be tested in a court of law.

What many owners and their attorneys do not recognize is that language they typically use in construction contracts does not necessarily apply to the performance of professional services. The rendering of an increasingly complex series of design decisions, for example, is not well served and can seldom be accelerated by throwing more workers into the breach. You already put in long hours, and overtime is an option fatigue tends to make counterproductive, at best. Resequencing your efforts to win back lost time is generally not possible. The options a contractor might have are simply not open to you.

What do you do with an owner's demand that time be "of the essence" of your agreement? The first thing to do is delete the offensive words. They are simply not appropriate in connection with the performance of professional services. Ask any heart surgeon.

If you are successful in this effort, take a deep breath, but do not stop there. If your agreement incorporates a project schedule, the dates in that schedule may be cast in stone as far as the owner is concerned. If the schedule leaves you plenty of room for false starts and blind alleys, perhaps you can live with it. A more cautious approach might be preferable.

Project schedules seldom provide for the unexpected (your project manager's reserve unit being called up, for example), and unrealistic expectations have a way of growing in the dark. Those who strive for clarity would not leave either of these contingencies unattended. Neither should you. Here, subject to the advice of counsel, is a simple way to chase away the darkness.

The Architect/Engineer acknowledges the importance to the Owner of the Owner's project schedule and agrees to put forth its best professional efforts to perform its services under this Agreement in a manner consistent with that schedule. The Owner understands, however, that the Architect/Engineer's performance must be governed by sound architectural and engineering practices.

The Architect/Engineer shad not be responsible for delay caused by circumstances beyond its reasonable control, nor for delay which may be occasioned by actions which, in the sole judgment of the Architect/Engineer, are required in the exercise of usual and customary professional care. The Architect/Engineer shall not be liable for damages arising out of any such delay, nor deemed to be in default of this Agreement as a result thereof.

Your message to the owner and his or her attorney is a simple one: "There are events out there over which I have no control, and I am not willing to be responsible for them. Nor am I willing to be placed in a position in which I am forced to choose between your schedule and sound professional practice. I simply cannot select against my own professional judgment, and I cannot accept the idea that you would want me to." Period.