Technical Program Abstracts

(CDR) Claims and Dispute Resolution

(CDR-2402) Project Claims Avoidance for Owners

Level: Intermediate

Author(s): Christopher P. Caddell, PE CCP DRMP; Andrew J. Aston

Sunday, June 11 1:15-2:15/Celebration 6

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

Level: Intermediate

Author(s): Lynn B. Larsen, CFCC

Sunday, June 11 12:00-1:00/Celebration 7-8

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 are the results most likely to be a win-win scenario. 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

Level: Basic

Author(s): Avinash A. Gaikwad

Wednesday, Jun 14 9:15-10:15/Celebration 6

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

Level: Intermediate

Author(s): Dr. George O. Okere, CCP

Sunday, June 11 1:15-2:15/Celebration 7-8

Abstract: Even though the evidence shows 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 objective of this research was to find ways to improve awareness on pervasive contract changes, evaluate the likelihood of encountering contract changes 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

Level: Intermediate

Author(s): Scott A. Galbraith, PE CFCC; Michael T. Siburt, PE CCP PSP; John C. Livengood, Esq. CCP CFCC PSP FAACE

Monday, Jun 12 2:00-3:00/Celebration 6

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

Level: Intermediate

Author(s): Dr. Tong Zhao, PE PSP; J. Mark Dungan

Sunday, June 11 2:45-3:45/Celebration 6

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

Level: Intermediate

Author(s): Thierry Linares

Sunday, June 11 2:45-3:45/Celebration

Abstract: The focus of the paper is based upon the authors experience on the contentious aspects of Extension of Time on an international construction contract.
 
The introduction to the paper will focus on the analysis of the legal basis (common law) on which, the authors experience on international contracts is based.   In addition it will focus on a comparison of usual contractual entitlements, requirements, and bars in major contract forms.

The body of the paper will focus on the transferring in practical application for planners and cost management professionals how the extension of time is executed along three basis of methodology:
-    Methodologies for technical analysis and demonstration (based on AACE Recommended Practices (RP) RP 29R-03, RP 52R-06, RP 45R-08, and RP 25R-03). These RP’s support reviews and analysis by type of delay and origin (stand-by, disruption, etc.);
-    Best International Practices on project and planning management for preparation of Extension of Time subjects in an objective to avoid disputes;
-    Cost quantification of the various types of Extension of Time, as well as a review on how quantification needs to be supported by the time extension, which allows for increased recovery potential.

The paper is based upon the authors experience and will focus on actual projects construction site and claims.

 

(CDR-2542) Uniform Demonstration Construction Schedule Series

Level: Intermediate

Author(s): Michael S. Dennis, CCP; Kenji P. Hoshino, CFCC PSP; Patrick M. Kelly, PE PSP; Greta A. Martin, PE PSP

Sunday, June 11 4:00-5:00/Celebration 6

Abstract: In order to evaluate implementation methods described in AACE's Recommended Practices for CPM scheduling and forensic schedule analysis, there is a need for a standard demonstration data set that can act as a common tool for practitioners to demonstrate good practice. This paper makes recommendations for the creation of a Uniform Demonstration Construction Schedule Series (UDCSS), a CPM network model, including a full life-cycle set of updates, which can serve as a standard data set for the demonstration of CPM scheduling concepts, testing of forensic schedule analysis methods, evaluation of scheduling software, and teaching of CPM scheduling, while also serving as an open-source 'sandbox'.  The UDCSS will model realistic complexity with a variety of conditions and technical attributes, such as types of relationships, multiple calendars, and activity codes, while also providing flexibility and scalability. Use of the UDCSS would add transparency of practice and provide a familiar and predictable known-state for scientific control.

 

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

Level: Advanced

Author(s): Kenji P. Hoshino, CFCC PSP; Michael S. Dennis, CCP; Greta A. Martin, PE PSP

Monday, Jun 12 11:15-12:15/Celebration 6

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

Level: Advanced

Author(s): Thomas Peters, PE CFCC; Alan J. Watson, Esq.

Tuesday, Jun 13 1:45-2:45/Celebration 6

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

Level: Intermediate

Author(s): Roger Nelson, PE; Bernard Ong

Monday, Jun 12 10:00-11:00/Celebration 6

Abstract: Forensic schedule delay practitioners 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-2608) Hot Tubs and Other ADR Remedies for Disputes that Ail You

Level: Advanced

Author(s): Kathleen Olden-Barnes; Christopher J. Brasco; George (Trip) Stewart

Sunday, June 11 12:00-1:00/Celebration 6

Abstract: The prompt resolution of claims is more essential than ever on the modern construction process. The speed, frequency, and complexity of changes 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. This paper explores how expert-based approaches to ADR can be tailored to facilitate claims resolution on even the most troubled projects. By effectively integrating subject matter experts into the ADR process, parties may be able to resolve issues on complex construction projects more quickly and efficiently.  Accordingly, this paper will address concurrent expert testimony, also known as “hot tubbing,” and how this process helps foster expert-based ADR. This paper will then proceed to explore how hot tubbing may be modified so that it better fits the needs of the dispute at hand.

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

Level: Intermediate

Author(s): Roy Cooper, PE; Brian Goodreau, PSP

Sunday, June 11 4:00-5:00/Celebration 7-8

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-2620) The Contemporaneous Period Analysis - Split Methodology Forensic Delay, MIP 3.4

Level: Advanced

Author(s): Mark F. Nagata, PSP; Christopher W. Carson, CEP DRMP PSP FAACE

Monday, Jun 12 4:45-5:45/Celebration 6

Abstract: The Contemporaneous Period Analysis - Split methodology (Method Implementation Protocol 3.4) is used when a schedule update has been performed based on progress, but schedule modifications have also been made before the schedule is published or submitted. When evaluating liability for delays (and damages related to acceleration) it is necessary to properly assign the project delay to the responsible critical work activities, events, or schedule revisions.  This methodology splits the analysis of delays between progress and schedule revisions so each can be evaluated separately, and allows identification and monitoring of lessons learned from forensic analysis such as re-planning failures and erosion of vital float through casual mitigation efforts. This paper will discuss the steps in this process, provide examples of how the method works, and discuss the evaluation of the results.

 

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

Level: Intermediate

Author(s): Walied Abdeldayem; Mark C. Sanders, PE CCP CFCC PSP

Tuesday, Jun 13 9:30-10:30/Celebration 6

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

Level: Intermediate

Author(s): Devdas Tamboli, CCP PSP; Manoj Joshi

Tuesday, Jun 13 3:15-4:15/Celebration 6

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 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

Level: Intermediate

Author(s): Anthony Gonzales; Jesus Schuldes, PSP; Katherine Hull; Dr. Marcelo Azambuja

Monday, Jun 12 3:30-4:30/Celebration 6

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

Level: Advanced

Author(s): Andrew Avalon, PE PSP; Ronald J. Rider

Tuesday, Jun 13 10:45-11:45/Celebration 6

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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