Technical Program Abstracts

(CDR) Claims and Dispute Resolution

(CDR-2766) Unraveling the Complexities of Construction Fraud

Author(s)/Presenter(s): Dayna L. Anderson; Sashi A. Mahtani, CCP
Time/Location: Sunday, June 24 from 2:15pm to 3:15pm / Coronado A (4th Floor)

Abstract:

[Level: Basic] This paper will discuss prevalent types of fraud within the construction industry.  Construction fraud schemes discussed herein include the following: (1) false representations of project records including payment applications, change orders and internal records, (2) bid-rigging, (3) non-payment of subcontractors and vendors, (4) disadvantaged business enterprise fraud, and (5) tool and equipment theft.  Common perpetrators of construction fraud, as well as ways to detect and deter construction fraud, will also be discussed.  Finally, a case study involving the construction of a senior residence living facility will be presented.  Construction fraud, including false representations of payment applications, was committed and later detected.

(CDR-2769) Daily Effect in Extension of Time Claims

Author(s)/Presenter(s): Carlos Seoane Dopazo; Javier Trapero Pérez
Time/Location: Sunday, June 24 from 4:00pm to 5:00pm / Coronado B (4th Floor)

Abstract:

[Level: Intermediate] The economic impact of extension of time (“EOT”) claims is usually focused, among others, in the economic impact of each day of extension. That is what is called the “daily effect” in a clear reference to the impact each day of extension has on a project’s economic results.

The aim of this paper is to describe a recommended method which could be profitable to determine which costs could be included in this “daily effect”, as well as a proper way these costs could be proved and quantified in a none controversial way.

This methodology is based on the personal experience of the authors in claims quantification, in addition of success cases on international arbitration and legal processes worldwide.

This paper proposes inclusion of the “daily effect” for fixed EPC project costs proportional to time and not proportional to production. Further, it tackles cases where each type of cost should or should not be included in the “daily effect”. Finally, a technical description of a validation method for proper documentation used in cost calculations depicted to minimize controversy during dispute resolution. The methodology also tackles potential risks of double counting.

(CDR-2775) Claims Management Starts on Day One

Author(s)/Presenter(s): Himansu Bhaumik, PE
Time/Location: Sunday, June 24 from 1:00pm to 2:00pm / Coronado A (4th Floor)

Abstract:

[Level: Basic] Every Project Manager's dream is to complete the project with zero claim.  However, in reality, many of the projects, especially the large ones, often are riddled with multiple claims.  Many of these claims do originate from unsuccessful change management.

Claims, in most of the cases, creates adversary situation between Contractors and Owners. Mitigation, as such, requires appropriate record keeping that can be trusted by both the parties.  Adequate and proper record keeping, therefore, must start from the day one of any project.  This paper discusses various types of claims highlighting the need of proper collection of the type of project data that could help resolve these claims.  Additionally, it includes a set of recommendations to reduce the risk of getting into a claim situation.

(CDR-2792) Using the Half-Step Technique in Retrospectively Analyzing Schedule Delay

Author(s)/Presenter(s): Robert M. Freas; Muhammad Khedr, PSP
Time/Location: Monday, June 25 from 10:15am to 11:15am / Coronado A (4th Floor)

Abstract:

[Level: Basic] In certain situations, following project completion, it becomes necessary to retrospectively analyze the projects update schedules to determine the causes of project delay and when they occurred. In those situations, where the contractor contemporaneously prepared the updates absent the use of a contemporaneous half-step approach, the analyst is challenged when trying to determine what caused reported delay and by how many days the project was affected. When faced with this situation, the analyst needs a technique to determine extent of the delay caused by the lack of progress, logic revisions, the introduction of fragnets representing changes, and other schedule changes representing any delays the contractor alleges occurred. Similar to the contemporaneous use of this technique, it’s equally important to perform the retrospective analysis in a certain order to appropriately identify and quantify delay(s). The purpose of this paper is to present a proposed Recommended Practice for an analyst to use in the forensic sense to analyze contemporaneous updates, void of the half-step approach, to determine the cause of and quantification of the delay(s).

(CDR-2803) An Egyptian Owner's Perspective on the “Missing Bill of Quantities Items” Phenomenon in Unit Price Contracts

Author(s)/Presenter(s): Dr. Waleed M. El Nemr; Ahmed S. Afifi
Time/Location: Sunday, June 24 from 5:15pm to 6:15pm / Coronado A (4th Floor)

Abstract:

[Level: Basic] It is commonly understood in the construction industry that unit price contracts entitle the contractor to payment for the actual executed quantities.  However, a question arises as to whether this statement holds when the contractor fails to undertake his duty to seek clarification for patent omissions in the bill of quantities during the tender stage, which can result in these omissions surfacing as changes during the construction stage with a possibly unanticipated and significant cost overrun borne by the employer.    All too often, in this case of clash of principles between the contractor’s right under a unit price contract for compensation of actual quantities, including those resulting from patent design omissions, and the principle of not compensating the contractor due to his failure to seek clarification of a patent design omission, there is a heated debate in the industry between employers (including their representatives and project management firms) and the contractors.  Contractors argue that the obligation to provide a complete design rests with the employer and the action of not compensating the contractor for actual quantities executed for any cause confuses the delineation between a unit price contract and a lump sum contract.  Employers, on the other hand, argue that the contractor gained an unfair advantage by not identifying patent omissions during the tendering stage and consequently submitting a non-responsive and misleading tender price. 

Although this clash of principles is often encountered in the construction industry worldwide, it is seldom discussed in the literature.  This paper sheds light on this topic and elaborates on the two opposing views.  Case studies from three major projects in Egypt are discussed to illustrate the complexities of this scenario and how it was handled on each project.  The paper concludes with a number of considerations and recommendations to construction practitioners that can contribute to a balanced and fair outcome to the contracting parties.

(CDR-2807) Application of Liquidated Damages When the Completion Date is Unknown - Insight from an Egyptian Perspective

Author(s)/Presenter(s): Dr. Waleed M. El Nemr; Amr Seddik
Time/Location: Sunday, June 24 from 1:00pm to 2:00pm / Coronado B (4th Floor)

Abstract:

[Level: Basic] The provision of liquidated damages for delay in the completion of a project is common in construction contracts worldwide.  The contracting parties are aware of the agreed completion date, which marks the application of the damages and progress is monitored accordingly.  However, all too often, due to delays attributable to both the owner and the contractor, the completion date passes, a time extension is not issued and the new completion date is left undetermined.  At some point during the works, the owner decides to apply liquidated damages for contractor’s failure to complete the works.  Aside from the question of concurrency of delay, and its effect on rendering such application of damages unenforceable or subject to apportionment, there is the question of the owner’s obligation to forewarn the contractor of the new completion date so that the contractor works to that date and takes the necessary measures to achieving this date (regardless of whether the contractor agrees to such date).  This paper tackles this second question from an Egyptian law perspective.  Two case studies are examined that illustrate the effect of this prior notification by the owner of the new completion date, or lack thereof, on the contractor’s progress.  Recommendations are summarized at the conclusion of the paper for construction practitioners.

(CDR-2812) Trends in Construction Technology – The Potential Impact on Project Management & Construction Claims

Author(s)/Presenter(s): Harold G. Dorbin, CFCC; Benjamin Woolley; James G. Zack, Jr. CFCC FAACE Hon. Life
Time/Location: Monday, June 25 from 11:30am to 12:30pm / Coronado A (4th Floor)

Abstract:

[Level: Intermediate] This paper identifies and explores some advances in construction technology in order to expose their potential impact on project and construction claims management and dispute avoidance. Technology has transformed the world radically over the last few decades. Computers, the internet, the internet of things, solar and wind power generation, and much more have made substantive changes in our personal and professional lives as well as in the overall economy. There have also been a number of technology changes impacting construction with even more on the way. The paper identifies 21 “early stage startups” that are working on technologies – both software and hardware – oriented at changing the construction industry insofar as how projects are planned, designed, and constructed. The paper examines how technology is in the process of changing the construction industry. The paper also examines how some of these technology changes have the potential to help contractors and owners avoid or mitigate construction claims.

(CDR-2818) Criticism of the ASCE Schedule Delay Analysis Offsetting Delay Concept

Author(s)/Presenter(s): Mark F. Nagata, PSP
Time/Location: Monday, June 25 from 2:15pm to 3:15pm / Coronado A (4th Floor)

Abstract:

[Level: Intermediate] The American Society of Civil Engineers (ASCE) published its Schedule Delay Analysis Standard in August 2017.  Not as ambitious as AACE’s Recommended Practice for Forensic Schedule Analysis, ASCE’s Standard is largely composed of concepts pioneered, proven, and standardized by others.  However, the Standard includes an unproven concept – offsetting delay.  Offsetting delay is controversial, both, because it is unproven and, because it is biased towards the interests of contractors. 

The concept of offsetting delay states that an owner may be required to grant the contractor a time extension for an owner-caused, non-critical-path delay at any point during the project.  This aspect of the concept modifies what has long been one of the basic laws of time extensions – the contractor is only entitled to a time extension to the project completion date when an excusable delay delays the project’s critical path and forecast completion date.

The ASCE’s concept of offsetting delay is biased against the interests of the owner because it provides a time extension for non-critical-path delays to contractors, but does not provide relief to the owner from the contractor’s delay costs in identical circumstances.  This paper evaluates the issues of criticality, concurrency, the redefinition of key terms, and other aspects of the ASCE Schedule Delay Analysis Standard’s offsetting delay concept in arguing for its removal from the standard.

(CDR-2837) Introduction to Claims Management Guideline

Author(s)/Presenter(s): Joseph L. Seibold, PE; Christi Fu
Time/Location: Wednesday, June 27 from 8:00am to 9:00am / Coronado A (4th Floor)

Abstract:

[Level: Basic] The goal of successful completion of the project now includes the expectation of project closeout free from disputes and claims. Construction disputes and claims threaten the schedule, cost and quality of the projects, impact future capital programs, divert critical resources and erode public confidence. The Construction Manager (CM) plays an important role and is responsible  for avoiding, mitigating, and resolving the disputes and claims between the owner and the contractor(s) during the execution of construction projects. Claims Management Guidelines provides the menu of services that relates to these responsibilities. The CM must understand the responsibilities of each party as stated in the Contract and have the skill to manage those separate parties and the project objectives of time, cost, quality, and safety. Understanding the most common causes of disputes and claims, the CM should implement a Claims Management Plan that enables the project team to avoid, mitigate and resolve disputes.

The paper discusses the objective and functions of the Claims Management Plan throughout the Pre-design, Design, Procurement and Post-Construction phases of the project.

(CDR-2838) Forensic Schedule Diagnostics to Support Selecting a Methodology in AACE RP29R-03, Forensic Schedule Analysis

Author(s)/Presenter(s): Jerry L. Vogt, PSP
Time/Location: Tuesday, June 26 from 11:30am to 12:30pm / Coronado A (4th Floor)

Abstract:

[Level: Intermediate] This paper discusses the role of performing Forensic Schedule Diagnostics (FSD’s) and Criticality Cross-Tabulations (CCT’s) for Method Implementation Protocol (MIP) selection, and which includes determination of the likely minimum number of variable or grouped periods necessary should one of the “windows” style methods be selected.  

The FSD and CCT methods described herein offer a fast and consistent way to assess change across many updates.  The nature and degree of change between schedule updates are predictive of relative effort involved with execution of various MIP’s. 

An essential part of assessing this effort is addressed by the fact that these changes are also predictive of the optimal minimum number of variable or grouped periods for efficient execution of windows based MIP’s.   It identifies where best to divide updates into groups to better understand and present changes to the critical path.  This can be accomplished during the first days of an FSA and therefore minimizes lost productivity due to the iterative re-grouping which is often required when such groupings are selected in a fixed, arbitrary, or a trial and error fashion. 

These methods can be employed independent of specific activity knowledge.  Therefore, conclusions can avoid potential bias which sometimes allegedly accompanies subjective selection of variable periods.

(CDR-2845) Comparison of the AACE International and ASCE Forensic Scheduling Consensus Documents

Author(s)/Presenter(s): Mark C. Sanders, PE CCP CFCC PSP
Time/Location: Monday, June 25 from 4:00pm to 5:00pm / Coronado A (4th Floor)

Abstract:

[Level: Advanced] This paper compares the guidance presented in AACE International’s Recommended Practice 29R-03, Forensic Schedule Analysis, with the guidance presented in ASCE’s Standard 67-17, Schedule Delay Analysis, which was published in August 2017. The paper presents a brief background on the development of consensus documents by technical organizations and the relationship of consensus documents to expert witness testimony. The paper then compares the guidance presented in the two documents on topics including the endorsement or rejection of specific techniques, analysis of concurrent delay, negative float and offsetting delay, and schedule corrections during analysis.

(CDR-2849) Time Impact Analysis in Windows - Concurrency Analysis

Author(s)/Presenter(s): Lucia Vernon
Time/Location: Tuesday, June 26 from 4:00pm to 5:00pm / Coronado A (4th Floor)

Abstract:

[Level: Intermediate] Time Impact Analysis in Windows (TIA) is recognized as one of the most credible techniques for analyzing construction delays according to AACE MIP3.7 Recommended practice 29R-03. This type of analysis was used to produce a concurrency analysis to prove contractor entitlement to prolongation costs. The critical path was investigated in a similar way to the Time Slice method. After investigation, fragnets were built using supporting documentation. The selection of the updated schedule to be impacted was made based upon the start date of the delay fragnet. The selected updates created the window periods, therefore this method breaks the project into discrete time increments (Windows) and examines the effects of the delays attributable to each project participant as those delays occur.

The TIA in Windows contains elements of retrospective analysis as the project schedule is reviewed in a series of ‘snapshots’ or ‘time slices.’ The analysis also contains a prospective analysis as the delays identified are swapped for an element of ‘prospective’ modelling. The analysis therefore combines a retrospective and prospective view and can be easily used to provide clear demonstration and calculation of concurrency and mitigation. Concurrency analysis using the TIA in Windows method has successfully led to the granting of prolongation costs to contractors.

(CDR-2864) An Effective Approach to Delay Analysis when Schedule Updates are Missing

Author(s)/Presenter(s): Emad Mofarej Kouchaki, PSP; Christopher W. Carson, CEP DRMP PSP FAACE
Time/Location: Tuesday, June 26 from 5:15pm to 6:15pm / Coronado A (4th Floor)

Abstract:

[Level: Basic] Most contracts require periodic schedule updates; however, sometimes contractors fail to provide these updates. This could be for a variety of reasons; perhaps concealing delays because recovery is anticipated, loss of scheduling staff, or due to a high workload. However, missing schedule updates make it much harder to isolate, identify, and analyze delays that occur during those update periods, as well as dramatically increasing risk to both the contractor and the owner. This paper provides guidance to an owner that will facilitate a collaborative and effective analysis of delays, and resolution of time extension entitlements.

This proven approach is aligned with AACE International Recommended Practice No. 29R-03, “Forensic Schedule Analysis”, and ensures that the analysis will not create any pitfalls at a later date should the issues require more formal dispute resolution. This process has been successfully implemented on multiple projects, and this paper includes a case study of a similar problem that was resolved for the Massachusetts Department of Transportation (MassDOT).

(CDR-2887) SCL Delay and Disruption Protocol 2nd ed. as Compared to AACE RP29R-03

Author(s)/Presenter(s): John C. Livengood, Esq. CCP CFCC PSP FAACE
Time/Location: Tuesday, June 26 from 10:15am to 11:15am / Coronado A (4th Floor)

Abstract:

[Level: Advanced] There are two peer-reviewed institutional guides to forensic schedule delay analysis available that describe delay methodologies.  The most recent is the Society of Construction Law’s Delay and Disruption Protocol, 2nd edition (DDP2), published in February 2017.  It represents a significant step forward from the first edition of the Delay and Disruption Protocol (DDP1), published in 2002.  The other peer-reviewed guide is AACE’s Recommended Practice on Forensic Delay Analysis – 29R-03 (RP29R-03), last published in its 3rd edition in 2011.  In terms of the many elements of delay analysis – do they agree?  Do they distinguish elements differently?  If so, how?  This paper examines how each of these guides treat major issues in forensic schedule delay analysis.

(CDR-2888) Success of Dispute Boards for Avoidance and Resolution of Disputes on Complex Projects

Author(s)/Presenter(s): Richard Appuhn; Ferdinand Fourie
Time/Location: Tuesday, June 26 from 2:15pm to 3:15pm / Coronado A (4th Floor)

Abstract:

[Level: Basic] This paper reviews the workings of a dispute resolution mechanism known as a Dispute Board (DB), which features a panel of experts named at the outset of the project. The DB visits the construction site regularly and keeps current on the project’s progress to maximize dispute prevention and resolve formal disputes quickly.

The DB process expanded rapidly from its origins in America to many types of complex projects worldwide. Historical experience will be covered, including adoption by FIDIC (International Federation of Consulting Engineers) in 1999, and later by many International Finance Institutions, notably through the FIDIC MDB version of its Construction Contract, and through the ICC Dispute Board Rules. In addition, the various types of Boards will be explained, their operations and the advantages of the various systems, and the unique dispute avoidance function.

Data from the Dispute Resolution Board Foundation and project owners will show the unequivocal success of DBs to help bring in projects on-time and within budget, and in reducing litigation costs. Finally, the paper will explain why the AACE International membership should be interested in becoming involved in this dispute avoidance and resolution process and how to serve as DB members.

(CDR-2936) The Impacted As-Planned Methodology (MIP 3.6) – Suitability and Application in Delay Analysis

Author(s)/Presenter(s): Walied Abdeldayem
Time/Location: Wednesday, June 27 from 9:15am to 10:15am / Coronado A (4th Floor)

Abstract:

[Level: Intermediate] The impacted as-planned methodology is, perhaps, the most criticized among all other delay analysis methodologies. Despite that, one cannot help but notice that the impacted as-planned methodology survived the challenges and remains one of the most frequently used methods in many countries, and in various dispute forums and stages. Of course, the availability of information is one of the main factors that dictate, on many occasions, the method that can be used for each particular case, however, this paper argues that when it comes to the popularity of the impacted as-planned method, the availability of information is a secondary factor in the analysts' eyes, it is often the simplicity of the method that makes this method very appealing to use. This paper examines the settings under which an analyst will favor this method, the method suitability, and the objectives and expectations when deciding to use it for delay analysis applications. The paper will also discuss various implementations of the method and illustrate the differences in results between these various implementations.

(CDR-2954) Proper Application of TIAs to Measure Delays on Government Projects

Author(s)/Presenter(s): Michael P. Ryan, PE PSP; Bryan Van Lenten, PE
Time/Location: Sunday, June 24 from 2:15pm to 3:15pm / Coronado B (4th Floor)

Abstract:

[Level: Basic] RP No. 52R-06 provides guidance for the application of the Time Impact Analysis (TIA) method to identify and measure delays during construction.  The issues, problems, and facts on every project are different, but the principles presented in Recommended Practice No. 52R-06 are applicable to construction projects of all types and complexities.

Proper use of a TIA can accurately measure the delay caused by added work and prevent disputes related to the quantification of delays.  However, TIAs can also be manipulated to present a skewed version of the project plan and exaggerate alleged delays.  The authors have successfully used the TIA method to identify and measure delay for government agencies such as the Department of Veteran’s Affairs and National Park Service.  This paper presents strategies learned from these projects and a case study to illustrate the application of the guidelines presented in RP No. 52R-06 on government projects.

(CDR-2963) The Why, When, and How of a Productivity Claim

Author(s)/Presenter(s): Joel A. Velasco; Maria Petrov, PE CFCC
Time/Location: Sunday, June 24 from 4:00pm to 5:00pm / Coronado A (4th Floor)

Abstract:

[Level: Basic] One of the most contested and controversial issues that often arises in construction claims is the calculation and/or estimation of lost productivity on a construction project. Contractors prefer to use estimation methods while owners often insist on using actual cost data, which in many cases does not exist. Tracking efficiencies and productivity on any project is often overlooked, but it can greatly affect the value of a loss of productivity claim if done correctly or incorrectly when pursuing a change orders or claims. This article will present the common pitfalls of typical loss of productivity claims based on measured mile analyses and industry studies, as well as, lessons learned and observations from actual construction claims. The article will also examine the pitfalls, why they occur, and how to avoid them in preparing a claim.

(CDR-2966) Primavera's Float Path Calculation: Review and Analysis of Applications

Author(s)/Presenter(s): Patrick M. Kelly, PE PSP; Roger Nelson, PE PSP
Time/Location: Sunday, June 24 from 5:15pm to 6:15pm / Coronado B (4th Floor)

Abstract:

[Level: Intermediate] Oracle's Primavera P6 Professional Project Management scheduling software remains the dominant package in construction scheduling, and features introduced by this software often become lingua franca between schedulers and schedule analysts. Such has been the case with the “float path” calculation that Oracle includes in its P6 software. Oracle’s documentation states that the Multiple Float Path module of P6 calculates a “most critical path” and “sub-critical” paths, ranked in order of “criticality” by the Float Path Value. Schedulers and analysts who use P6 have sometimes adopted this feature and used it to determine “near-critical” paths, or even “concurrently critical” paths. This paper will present multiple case studies to illuminate the operation of the float path calculation so that analysts can properly employ the module through an understanding of its uses and limitations.

(CDR-2972) Productivity Loss Quantification Using a Novel Artificial Intelligence Approach

Author(s)/Presenter(s): Sasan Golnaraghi; Dr. Osama El Sayed Moselhi, P.Eng.; Dr. Sabah Alkass, P.Eng.; Farzaneh Golkhoo
Time/Location: Wednesday, June 27 from 10:30am to 11:30am / Coronado A (4th Floor)

Abstract:

[Level: Intermediate] Researchers and industry practitioners agree that changes are an integral part of construction projects and that overlooked cumulative impact of changes should not be overlooked because it can be detrimental to project success. Cumulative impact of changes on construction labor productivity is difficult to identify and measure. Although Measured Mile Analysis (MMA) is a well-known and widely accepted method for quantifying the cumulative impact of changes on labor productivity, it is not easily applicable to many cases. This paper presents a novel Artificial Intelligence (AI) approach to quantifying loss of productivity due to changes during project development. Two datasets were collected from earlier studies using real construction projects, namely, the developed models of Leonard (1988) and Assem (2000). The model developed in this paper, along with two widely used regression models, “Leonard and Ibbs”, are tested against actual cases to demonstrate the developed model’s capabilities. While the developed model is expected to be beneficial for construction practitioners in evaluating the cumulative impact of changes on labor productivity, it should not be considered a replacement for professional judgment in assessing the cumulative impact of changes.

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