Technical Program Abstracts

(CDR) Claims and Dispute Resolution

(CDR-2402) Project Claims Avoidance for Owners

Authors: Christopher P. Caddell, PE CCP DRMP; Andrew J. Aston

Abstract: In the management of projects, owners often have to resolve claims with contractors, either from them or against them.  Avoiding these claims and the source issues when possible can help minimize the negative impact these disputes have on a project’s return on investment.  It is important to know what the common sources of project claims are.  Claims avoidance actions start during project development with the selection of an appropriate contracting strategy, the development of contract form, contract negotiations and scenario playing.  The claims avoidance work continues through the execution of the work with various techniques, data and documentation, and proper change order management.  While claims cannot always be avoided, owners using these recommended practices can minimize the probability of claims and lessen the impact when they do occur.

 

(CDR-2417) Optimizing the Resolution of Disputes on Construction Projects

Authors: Lynn B. Larsen, CFCC

Abstract: This paper  briefly summarizes the available options (litigation, mediation, arbitration, and Dispute Review Boards (DRBs)), considers typical contract disputes including actual examples, and concludes that only with DRBs is there likely to be winners, frequently win-win. In the other processes even the prevailing party never recovers all its losses. They are lose-lose processes.

 

(CDR-2451) Principles of Mediation – Explained with Case Study

Authors: Avinash A. Gaikwad

Abstract: Alternative dispute resolution processes (ADR) covers various means of disputes resolution beyond the scope of formal litigation. These processes include negotiation, arbitration, conciliation, mediation, etc.

Mediation is a voluntary, non-binding and private dispute resolution process wherein a neutral person helps the parties towards achieving a negotiated settlement.

This paper will focus on how the principles of Mediation are applied to achieve desired results while settling a prolongation and disruption claim with the help of case study. It also discusses the various conditions where the Mediation principle can be suitably applied for settling disputes/claims in Construction industry. At the end recommendations will be provided on how this method can be applied under different circumstances to save time and cost for dispute resolution process.

 

(CDR-2452) Change Happens: Implications on Contract Administration Practice and Policy

Authors: Dr. George O. Okere, CCP

Abstract: Even though the evidence show that almost every project encounters contract changes, practitioners still fail to prepare adequately to administer contract changes effectively. Our understanding of those practices that should occur before, during and after contract changes are encountered is important. Ineffective contract administration is a problem that cost taxpayers money and should be evaluated for possible solutions. The objectives of this research was to find ways to improve awareness on pervasive  contract changes, evaluate the likelihood of encountering contract change on a project, and investigate a more systematic approach to administer contract changes. The research approach is an in-depth literature review method and the research gathered, analyzed and synthesized literature and empirical data from other research reports. This research provided a perspective and awareness on contract changes, provided evidence to support the fact that the likelihood of contract changes is high, and it explored key factors that affect effective contract administration. This research showed that contract change is inevitable, should be expected, and properly planned for. The findings from this research have implications on practice and policy and should help reshape how contract changes are administered.

 

(CDR-2495) Overview of As-Planned versus As-Built Forensic Schedule Analysis: AACE® International Recommended Practice No. 29R-03 Forensic Schedule Analysis MIP 3.1 and 3.2

Authors: Scott A. Galbraith, PE CFCC; Michael T. Siburt, PE CCP PSP; John C. Livengood, Esq. CCP CFCC PSP FAACE

Abstract: As-Planned versus As-Built forensic schedule analysis is a method used to identify and quantify delays and, most importantly, the delays that led to the later-than-planned completion of a project.  The intent of this paper is to provide the reader with an overview of As-Planned versus As-Built forensic schedule delay analysis.  The Method Implementation Protocols (MIP) for this type of analysis are presented in AACE® International’s (AACE) Recommended Practice No. 29R-03 Forensic Schedule Analysis (RP29R-03), Section 3.1 Observational / Static / Gross (MIP 3.1) and Section 3.2 Observational / Static / Periodic (MIP 3.2).

The selection of the schedule delay analysis methodology used for a dispute arising from a particular project ultimately is the responsibility of the schedule analyst.  In many situations, the methodology chosen may be based on requirements of the contract between the parties.  In other situations, the schedule analyst is free to choose the methodology he or she feels best communicates his or her opinions based on the facts of the dispute and available contemporaneous project documentation.  This paper presents information about the procedures associated with MIP 3.1 and MIP 3.2 for consideration by the schedule analyst as may be applicable to the specific dispute at hand.

 

(CDR-2499) Measured Mile Improvements in Pervasively Disrupted Projects

Authors: Dr. Tong Zhao, PE PSP; J. Mark Dungan

Abstract: Proving lost productivity is a challenging task in construction claims, especially in the context of pervasive disruptions and cumulative impacts.  Although the measured mile method is generally the most accepted approach to quantify loss of productivity in construction projects, its applicability is often hampered when suitable data is not readily available; further, it is not uncommon that its application is abandoned due to the perceived difficulties in proving similar work, and distinguishing the unimpacted, lightly impacted and heavily impacted work.  Yet even in these cases, project specific productivity differential methods based on the measured mile concept, are favored because it compares actual performance of similar work on the same project while minimizing the reliance on the budget.  Through case studies, this paper will demonstrate how to combine various techniques to establish a baseline, which would extend the use of the measured mile concept to projects on which the measured mile method may intuitively appear inapplicable.

 

(CDR-2531) Extension of Time Quantification

Authors: Thierry Linares

Abstract: This paper focuses on the contentious aspects of Extension of Time concept applied to construction contracts.

First, the analysis of the legal basis (common law) on which the concept is based, and a comparison of usual contractual entitlements, requirements and bars in major contract forms.

Then, transferring in practical terms for planners and cost management professionals is done along three axes:

- A reminder of methodologies for technical analysis and demonstration (based partly on AACE 29R-03, 52R-06, 45R-08 and 25R-03), by type of delay and origin (stand-by, disruption, etc.);

- Good practices of project and planning management to prepare for Extension of Time subjects in an objective of disputes avoidance;

- Cost quantification of the various types of Extension of Time (good and ... less good practices), and how the quantification needs to be supported by the extension to allow good recovery potential.

The entire paper and presentation is very hands-on oriented, based on construction site and claims experience.

 

(CDR-2543) Proposed Format and Content for Subordinate Recommended Practice, 29R-03-3.X

Authors: Kenji P. Hoshino, CFCC PSP; Michael S. Dennis, CCP; Greta A. Martin, PE PSP

Abstract: This paper is an effort to reach a consensus on the standard format and an inventory of contents for a series of Subsidiary Recommended Practice documents outlining in detail each of the nine method implementation protocols contained in Recommended Practice 29R-03, Revision 2. The purpose is to alleviate the frequency and complexity of revisions to the Master 29R-03 document as revisions become necessary to one or more of the nine methods currently outlined in 29R-03.  This will also reduce the bulk of 29R-03 from 134 pages to a size that matches the rest of the RP's in AACE’s® library.  The paper will use Method Implementation Protocol 3.8 as a mock topic to discuss the requisite contents of the Subsidiary Recommended Practice.

 

(CDR-2559) Identifying Critical Path Shifts in Observational Forensic Delay Analyses

Authors: Thomas Peters, PE CFCC; Alan J. Watson, Esq.

Abstract: Forensic CPM delay experts are typically retained to opine on three very fundamental questions:  (1) What was the critical path; (2) When did the critical path shift; and (3) How much delay is attributable to the issues?  Yet, even after the publication of RP 29R-03, Forensic Schedule Analysis, the complex answers to these simple questions remain elusive.  The resolution of disputes associated with the evolution of the critical path can be exceptionally difficult.  Why?  Because the calculation of dynamic critical paths can be exceedingly complex and have a significant impact on disputed delay damage calculations.  Despite the complexity and significance of these analyses, precious few technical resources exist for experts, judges and triers-of-fact to determine the evolving contiguous set of activities that lie on the critical path.  This paper, co-authored by a Forensic Delay Expert and a Construction Litigator, proposes a defensible set of CPM-based protocols designed to increase the likelihood that the expert’s opinions get past the gatekeeper and into the hands of the jury.

 

(CDR-2568) What’s in a Name? – Forensic Delay Methodologies

Authors: Roger Nelson, PE; Bernard Ong

Abstract: We seem to be in the midst of a contest to invent new names for familiar forensic schedule delay methodologies.   Despite the publication of AACE® RP No. 29R-03 in 2007, the number of new names for similar, if not identical methodologies, has grown – and continues to grow.  Furthermore, it’s unclear if a consensus among practitioners has been made on the names of the more frequently referenced methodologies.  In the past decade since the publication of AACE® RP No. 29R-03, books, articles, and methodological guides have been published that rename familiar methodologies and occasionally try to repackage them into substantively different methodologies.  For example, the UK-based Society of Construction Law Delay and Disruption Protocol has identified two methods of “Windows.”  One appears to be a Contemporaneous Period Analysis (MIP 3.3) and the other seems to be an As-Planned vs. As-Built (MIP 3.2).  This paper surveys publications and journals in an effort to make sense of the nomenclature and identify consensus - if any.  Methodologies described in the sources are inventoried by name, and categorized into the system developed in AACE® RP No. 29R-03, or if appropriate, into new categories.

 

(CDR-2574) Contemporaneous Period Analysis to Analyze Concurrent Delays

Authors: Varadha Ananthalakshminarayanan; Brian Goodreau, PSP; Rick G. Cianfaglione, PSP

Abstract: Concurrent delay is a widely debated complex technical and contractual issue. Proper analysis and apportionment of concurrent delays can be one of the most challenging tasks encountered while evaluating a delay claim. Segregating progress delays from schedule revision delays by creating bifurcated schedules is a technique that analysts may implement to assist in concurrent delay analysis. Using bifurcated schedules with a contemporaneous period analysis helps analysts identify the root causes of delays and apportion responsibilities for concurrent delays. Using the Backward Pass procedure is one technique that may be implemented in a contemporaneous period analysis to help identify concurrent delays in CPM schedules. Using these techniques described here lend added credibility to delay evaluations during the dispute resolution process, as it helps analysts to acknowledge changes in the critical path that occur throughout the duration of the project while considering concurrent delays. This paper will explore the concept of concurrent delays and one analysis technique that can be applied to many industry recognized delay analysis methodologies to identify concurrent delays.

 

(CDR-2608) Hot-Tubs and other ADR-Remedies For the Disputes that Ail You

Authors: Christopher J. Brasco; Kathleen Olden-Barnes; Kenji P. Hoshino; Adam M. Tuckman

Abstract: The prompt resolution of claims is more essential than ever on the modern construction project.  The speed, frequency and complexity of change as well as the conditional availability of project financing have linked project success and efficient claim resolution more closely than they have ever been in the past. Building on this premise, the paper will explore how expert-based approaches to ADR can be tailored to facilitate claims resolution on even the most troubled projects.  The thesis is that the effective integration of subject matter experts into the ADR process will increase the efficiency and success of ADR efforts on complex construction projects.

Techniques considered will include: designated project technical experts dispute review boards trends in "hot-tubbing," experts and adjunct technical mediators.  Panelists will discuss their experiences utilizing these types of ADR approaches and how they can be adapted to meet the needs of the audience.

 

(CDR-2610) A Methodology for Determining QUANTUM

Authors: Prad Maraj; Prath Mehta

Abstract: One of the more common issues litigated is delays in construction contract performance. As a requirement of the contract, contractors often use CPM schedules as a primary vehicle to plan and sequence the work. A secondary role of the schedule is it may protect either party from liability for delay costs. It also permits one party to establish that another party was the cause of a claimed delay.  Construction projects typically involve the 3 M’s-Men, Machines, and Methodology which require tremendous cost from payrolls, equipment rental, and overhead. Add the significant risks and liabilities associated with delays, there is a lot of money at stake when projects are late. This paper addresses the quantum aspect of delay related claims and is intended as a follow on to the presentations of the nine (9) methodologies presented for Time Impact Analysis and how to perform each. Having established that a project was delayed and the schedule analysis has calculated the number of days of delay, how does a practitioner “analyze” the cost of damages and recommend to the parties to the contract an amount with some degree of confidence to reach a settlement?

 

(CDR-2616) Global Construction Disputes Report 2016 - Don't Get Left Behind

Authors: Roy Cooper, PE; Brian Goodreau, PSP

Abstract: The Global Disputes Report presents an in-depth, data driven review of projects and disputes globally in 2015. The report focused on five key areas: the length of disputes, average value, common causes, most popular resolution methods and region specific nuances. This report also includes an overview of the macroeconomic market position and goes on to cover several global regions, including North America, UK, Continental Europe, Middle East, Asia, and Australia. This paper reveals key themes and insights into the global construction disputes market. Any dispute is case specific, so to endeavor to group causes and develop averages can risk omitting critical information related to the overall nature of the dispute. However, given the range and depth of the coverage, dispute trends, both globally and regionally, are indicative of market trends. The results show that disputes globally have marginally reduced, but the durations have markedly increased. The increased length of disputes will have multiple effects for both parties and are likely to, ultimately, have a negative impact on the construction industry.

 

(CDR-2662) RP29R-03 MIP3.5 Observational / Dynamic / Modified or Recreated

Authors: Walied Abdeldayem; Mark C. Sanders, PE CCP CFCC PSP

Abstract: Windows Analysis is a term that has been used (and misused) frequently to refer to various, and in many situations very different, delay analysis methodologies. Other papers under the FSA series, related to this paper, address various implementations and derivatives of analysis methods that utilize the windows analysis approach. This paper focuses on the usage of modified and/or recreated schedules, mostly after the fact, as a tool to analyze delays. The paper explains the various derivatives of this method, discusses their strengths and weaknesses and addresses the challenges that may face an analyst in carrying out this type of analysis. Further, the paper provides useful recommendations to assist the analyst in deciding whether this method is suitable for the case at hand and outlines the objectives and expectations when using this method.

 

(CDR-2684) An Insight to Concurrent Delay Analysis

Authors: Devdas Tamboli, CCP PSP; Manoj Joshi

Abstract: Concurrent delays are quite common in construction projects, however definition and understanding of concurrent delays is still a matter of confusion. How concurrent delays are analyzed plays an important role in their quantification and compensation. Construction contracts often don’t specify how to deal with concurrent delays and this creates confusion.  General understanding about concurrent delays is, two delays happening at the same time. However, some recent theories conclude that, concurrent, delays need not necessarily take place at the same time.

Understanding and analysis of concurrent delays not occurring at the same time is an intricate subject.  The paper focuses on explaining different types of concurrent delays in construction projects, factors affecting analysis of concurrent delays and analysis of concurrent delays using window analysis and but for analysis.

 

(CDR-2691) Contemporaneous “As-Is” Period Schedule Delay Methodology - Forensic Delay Methodology MIP 3.3

Authors: Anthony Gonzales; Jesus Schuldes, PSP; Katherine Hull; Dr. Marcelo Azambuja

Abstract: The Observational/Dynamic/Contemporaneous As-Is analysis is a retrospective technique that divides the total project duration into smaller periods (also known as windows). The Contemporaneous Period Analysis has three identified variations with AACE® RP29R-03. The MIP 3.3 variation focuses on the usage of the periodic schedules submitted during the performance of the project as the basis to identify and quantify delays. In this methodology, the utilized schedules are relied on in their contemporaneous state of submission (i.e., “as-is”) and avoid analyst-inserted modifications to the submitted schedules, or in some cases, may perform minor adjustments. The paper examines the rationale behind using this method, discusses its strengths and weaknesses, and addresses the challenges an analyst may face while performing this type of analysis. Further, this paper critically examines the arguments for and against this methodology and provides useful recommendations to assist the analyst in deciding if this method is suitable for the case at hand.

 

(CDR-2708) The Collapsed As-Built Windows Schedule Analysis Method

Authors: Andrew Avalon, PE PSP; Ronald J. Rider

Abstract: The Collapsed As-Built Windows Schedule Analysis (AACE® International Recommended Practice 29R-03, Method Implementation Protocol 3.9) is a modeled, subtractive, multiple-base method.  It is a retrospective CPM schedule analysis which is typically used to prove entitlement for compensable delay and assess concurrency of delay within a window of time.  The analysis simulates the as-built conditions within a schedule window and then delays are removed from the CPM model.  If the forecasted project finish date “collapses” but-for or absent compensable delays, then entitlement for compensable time-related costs can be demonstrated.  This paper addresses the usage of the Collapsed As-Built Windows protocol and the advantages and disadvantages of the methodology.

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