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CONSTRUCTION CLAIMS and DISPUTES – Subject Series Summary – Update 11-Nov-2014

November 11, 2014 By

Just as the businesses and economies have cycles, capital projects (particularly engineering and construction) have recurring cycles.  The pendulum swings back and forth within the bounds of the capital project cycle.  In capital projects, the cycle can be three to five years, depending on the economy, size and complexity of the projects and other factors.

At this time, the market seems to be transitioning from project planning and early execution into middle to later-stage execution with emergence of disputes.  As the claims and disputes marketplace intensifies over the next several years, Construction Claims and Disputes will become an increasingly commonplace and a relevant topic for capital project management professionals.

Construction Claims and Disputes continues to be the most popular subject on Project Professionals.  Further, it is the most requested line of services provided by McLaughlin & McLaughlin.  M&M are project management practitioners (in the field) and, yes, we practice what we preach.  Further, our choice of topics for Project Professionals posts is driven by and reflective of practical and current issues.  This is not esoteric, academic or hypothetical “stuff”.

This summary update provides readers with an overview of prior posts and provides a baseline for future posts that will follow on a timely basis.  Initially, this Subject Series, Construction Claims and Disputes, was posted during January 2011 through July 2014.  During the past several years, greater than 25% of views by visitors have been to this Subject Series.

Ideally this Subject Series  provides a starting point to investigate best practice on many planning and execution features of construction claims and disputes. [Read more…]

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CONSTRUCTION CLAIMS and DISPUTES – Subject Series Summary

January 8, 2014 By

Construction Claims and Disputes is the most popular subject on Project Professionals and has been for several years.  Further, it is the most requested line of services provided by McLaughlin & McLaughlin.    M&M are project management practitioners (in the field) and, yes, we practice what we preach.  Further, our choice of topics for Project Professionals posts is driven by and reflective of practical and current issues.  This is not esoteric, academic or hypothetical “stuff”.

This summary update provides readers with an overview of prior posts and provides a baseline for future posts that will follow on a timely basis.  Initially, this Subject Series, Construction Claims and Disputes, was posted during January 2011 through August 2013.  During the past several years, greater than 25% of views by visitors have been to this Subject Series.

Ideally this Subject Series  provides a starting point to investigate best practice on many planning and execution features of construction claims and disputes.

Construction Claims and Disputes (Part 0)  – This introduction formats the discussion with definitions, claim categories and key industry references.  This post is consistent with M&M experience in many years of professional services.

The Overview (Part 1)  –Part 1 updates Part 0, the introduction.

Construction Claims Management Planning (Part 2) – This is the most popular post in this (most popular) Subject Series.  Construction claims (or the risk of claims) can and should be professionally managed.  View this process as a piece of project (execution) planning [link].  This post outlines elements of a Construction Claims Management Plan.  Further, it addresses elements of defining a Claim Strategy.  Stakeholders include Owners, Prime Contractors and Subcontractors.  Do not miss this post.

Current Project Professionals Posts (Part 3) – Claims are organized into four general categories.  These categories are consistent with the frequency of occurrence, methods of management and other key managerial considerations.  The categories are

  • Scope of Work, Changed Work or Variations
  • Delay and Acceleration, Time-Related
  • Disruption / Productivity (usually labor/labour)
  • Terms and Conditions.

Pricing Construction Claims (Part 4) – This post addresses the…  Think you know how to price your (or other’s) claims?   Andrew (Andy) Ness, 2012-13 Chair, ABA Forum on the Construction Industry probably disagrees with your answer.  Read this post and consider Andy’s position as well as other considerations regarding claim pricing/damages.  The content of the recent ABA book on the subject is covered.

Pricing Construction Claims (continued) (Part 5) – Are construction claims and disputes “all about the money?”  Some believe this to be the case.  This post (Part 5) expands on Part 4 by addressing pricing and citing additional references.

Scope of Work – Baseline (Part 6) – It is widely believed and accepted that Scope of Work and/or Changed Work is the single largest source of claims and disputes in engineering and construction (as well as many other contracted services).  In order to establish departures from the baseline scope of work, you must be able to define the applicable baseline.  This post cites various sources for baseline definition,

Scope of Work – Plans and Specifications (Part 7) – Several industry sources (publications) are used to elaborate on execution and contracting strategies that rely on plans and specifications as a major component of scope or work definition.  This discussion includes typical contract documents and contract provisions wherein scope of work, services, supply and / or facilities is / are defined.  Suggestions for configuration and change management in the field are included.

Other Subject Series that are both relevant and popular include:

Going forward, we will post other features of CONSTRUCTION CLAIMS and DISPUTES.

My we wish you the best of luck and let us all attempt to confront and deal with these and other project management challenges.  It is crucial that recognition and anticipation of these issues occur during initiation and planning.  However, the recognition and management should continue through execution, controlling and closeout.

Please note that McLaughlin and McLaughlin [M&M] is not a law firm and is not intending to provide legal advice.  M&M is a consulting firm providing (among other services) non-legal expertise in dispute resolution and litigation support.  The Resource Center is for the convenience of blog visitors and M&M does not offer this for commercial purposes.  For further information on M&M services, please see www.McLaughlinandMcLaughlin.com.

 

 

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CONSTRUCTION CLAIMS and DISPUTES – (Part 7)

August 6, 2013 By

Scope of Work – Plans and Specifications

This McLaughlin and McLaughlin (M&M) post is the seventh in a Subject Series  Construction Claims and Disputes.  This Subject Series  contains discussions regarding construction claims and disputes.

Recent and subsequent posts (Parts 6, 7 and the next few) (will) address scope of work within the overall subject of Construction Claims and Disputes.  Disputes and claims regarding scope of work are a highly pervasive problem and represent the most common type of claim or dispute.  Perhaps 75 to 90% of all engineering and construction claims and disputes involve contract scope of work.

Virtually all disputes and claims arise as a result of departures from the baseline.  These variances (cost, time or other) create the dispute.  Therefore, understanding the baseline is essential.  In construction claims and disputes, the baseline is (almost) always the contract.  The contract is the “deal” or the agreement between the parties.  While it must meet several legal tests, the contract is the baseline that will be the focus of this discussion.  You must have, know and understand the contract, or at least all portions and provisions that relate to scope of work.

In this discussion, the plans and specifications are the scope of work baseline.  Typically, the plans and specifications are augmented by other contract documents (such as terms and conditions, site services, execution plan documents and others).  Using the term “design specifications,” let us view these documents as “…the specific requirements for constructing, testing, inspecting, and the materials provided for the project” (Brams and Lerner).

The majority of the discussion will address entitlement to recovery (rather than pricing or quantum). [Read more…]

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A View from the Field Project Execution / Contracting Strategies Large and Complex Industrial Projects

May 6, 2013 By

This article from the Division 1 of the ABA Forum on the Construction Industry Newsletter “The Dispute Resolver” represents George T. McLaughlin’s “View from the Field” formed throughout the course of his 30+ year career in the industrial marketplace.[1]   His article is broken into four parts.  Part 1, below, describes the evolution of the delivery systems in large and complex industrial projects[2]. The remaining sections, which we will publish in our next three newsletters, will discuss the legal implications (Part 2), impact on claims, disputes, and resolutions (Part 3), and prevention and corrective processes (Part 4).

Part 1 of 4 – Framing the Issue 

When the earth’s tectonic plates shift, unless there is a resulting earthquake, it goes unnoticed.  The movement is not perceptible.  Nevertheless, major changes are occurring.  In large and complex projects, with three to five (or longer) year schedules, industry shifts may not be perceptible.  Nevertheless, major changes and related impacts may be in progress.  Trends and changes in project execution and contracting strategies are similar.  These trends, however gradual and unnoticed on a daily or monthly basis, cause major impacts on existing and future projects.  While industry experts cite or drive these changes, the impact on the field may be delayed or go unrecognized by many, if not all stakeholders.  The business motivations driving the trends discussed below are varied and complex.  Perhaps, the central theme is risk tolerance or management.  The large worldwide prime contractors (typically Engineer Procure Construct) migrated toward limiting major risks by limiting scope of work, insisting on reimbursable cost (as opposed to fixed price) commercial  terms, or both.  Owners chose to limit or compartmentalize risks by breaking scope of work into smaller packages and seeking fixed price on these smaller packages.  Construction Contractors retained a willingness to work on fixed price commercial terms; but, increased their tendency toward claims and disputes processes in order to manage their risks.  Collectively, we see a myriad of fixed price scope of work packages being pieced together to form a complete project.  Formerly, this mosaic of work scopes was under one Prime Contract. [Read more…]

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CONSTRUCTION CLAIMS and DISPUTES – (Part 5)

April 1, 2013 By

Pricing Construction Claims – (continued)

McLaughlin and McLaughlin’s Project Professional post is the fifth in a Subject Series Construction Claims and Disputes.  This Subject Series contains discussions regarding potential and actual construction claims and disputes situations.  In this series, we focus on the key aspects of construction claims and disputes management (rather than mechanics).  This discussion is a continuation of Part 4 regarding the pricing of claims and disputes.  The compulsion or question is – “How much is a potential claim worth?”  In virtually all disputes, the central issue is the money.  Since it is a win-lose situation, the outcome may be that someone (one party) will pay another party.  Hence, the money is the ultimate issue (sometimes time is at issue, generally presenting itself in money or damages related to the time).

There is an old saying “win the battle, lose the war” which applies to damages in construction claims and disputes.  With facts, logic and analyses on their side, one party (Party A) can prepare and present a very compelling argument regarding the claim (against Party B).  However, winning the argument on the cause (or as it is called, entitlement) is relatively useless without winning the argument on the money related to the effect (or sometimes called damages, quantum, compensation, pricing).

Even more compelling, the decision to proceed with a claim (and potentially spend millions of dollars on expenses such as legal and expert fees) should be heavily driven by the potential recovery (the money).  Consequently, parties must have a reasonable assessment of the true value of the dispute and the ability to successfully demonstrate or prove these damages in the resolution process.  Without the ability to prevail on a suitable and acceptable level of damages, pursuing a construction claim through a costly dispute resolution process could be an unwise managerial decision.

McLaughlin and McLaughlin  has extensive experience and expertise in the strategy and pricing of major construction claims and disputes.  This experience includes work for both owners and contractors.  Further, the experience includes testimony on this topic.

In this discussion, we are guided by another highly useful and well written book.  This reference is Calculating Construction Damages, Second Edition, by William Schwartzkopf and John J. McNamara. [Read more…]

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CONSTRUCTION CLAIMS and DISPUTES – (Part 3)

March 4, 2013 By

Current Project Professionals Posts

McLaughlin & McLaughlin’s Project Professionals post is the third in a Subject Series.  Construction Claims and Disputes which are (will be) discussions regarding managerial challenges in potential and actual construction claims situations.  In this series, we focus on the managerial aspects of construction claims and disputes management.  This summary discussion addresses the many posts that have been presented in the past and are at the Subject Series tab of Project Professionals.

In the engineering and construction industry, claims and disputes take many forms and focus on many topics.  For simplicity of discussion, we will use the follow the following categories:

  • Scope of Work, Changed Work or Variations
  • Delay and Acceleration, Time-Related
  • Disruption / Productivity (usually labor/labour)
  • Terms and Conditions (and other subjects).

McLaughlin & McLaughlin’s Project Professionals has posted (or published) greater than 60 posts regarding one or more aspects of Construction Claims and Disputes.

The balance of this post identifies the Subject Series and posts that are at Project Professionals and are relevant to construction claims and disputes. [Read more…]

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CONSTRUCTION CLAIMS and DISPUTES – (Part 2)

February 6, 2013 By

Construction Claims Management Planning

This post is the second in a Subject Series  Construction Claims and Disputes which are (will be) discussions regarding managerial challenges in potential and actual construction claims situations.  In this series, we focus on the managerial aspects of construction claims and disputes management.  This post addresses the planning, a key managerial requirement in all project work.  First plan it, and then do (execute) the work.  The notion is consistent with the old adage “An ounce of prevention [in this case management] is worth a pound of cure.”  In that regard, litigation on a large and complex project can cost millions USD in expenses to pursue and may have tens of millions USD at issue.

Yes, construction claims and disputes can and should be managed.  This is particularly true of large and complex projects.

Prospective Construction Claims Management refers to the managerial approach and planning for managing the risks (and options, opportunities, etc.) during project execution through project close-out related to claims.

Retrospective Construction Claims Management (development, presentation and defending) will be addressed in another post.

Claims Avoidance – There is a myth that construction claims can be avoided.  Experience shows that this is just a myth, since it relies on controlling the activities of others.  These others may be in an adversarial posture or position.  Hence, control cannot be readily achieved. [Read more…]

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CONSTRUCTION CLAIMS AND DISPUTES – (Part 1)

January 22, 2013 By

This McLaughlin & McLaughlin post is an introduction to an ongoing Subject Series regarding Construction Claims and Disputes in engineering, procurement and construction industry.

OVERVIEW

In relation to construction claims and disputes it is important for all readers, contributors, participants and others regarding the general subject of claims and disputes to be equally informed.  This discussion is directed toward engineering and construction claims and disputes.

In the engineering and construction industry, contract claims and disputes are common issues.  They occur between: owners and contractors (prime), contractors and their subcontractors, contractors and (their) vendors, and at other contractual interfaces.  Resolution of the claims and disputes can be a costly, disruptive and aggravating process for all parties.

[Read more…]

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PROJECT PROFESSIONALS POSTING RESUMPTION

December 16, 2012 By

McLaughlin and McLaughlin [M&M] is pleased to announce that they will resume postings at their blog, Project Professionals.  Since March 2012, M&M has been heavily involved with several large assignments [Canadian Oilsands program management support and construction claim regarding an international power plant project].  Now that workload permits, new blog postings will be offered.

M&M wishes to remind followers (new and ongoing) that there are many offerings at the Project Professional site.  They are organized by what we call Subject Series.

These Subject Series are:

  • Managing Risk of Delay [15 posts]
  • Contract Notice and Recognition [4 posts]
  • Productivity [18 posts]
  • Schedule Validation and Audits [3 posts]
  • Staffing Your Project Management Team [8 posts]
  • Project Management Challenges [11 posts]
  • Time Management – Schedule Specification Implementation [6 posts]
  • Ways of Working [1 post]

M&M will resume new posts with a Subject Series titled Success through Project Planning.  This Subject Series will focus on methodologies, process, sequencing, synchronization and other managerial considerations.

We hope that you will find these existing and new posts informative and relevant.

May we wish you the best of luck and let us all attempt to confront and deal with Project Management Challenges.  It is crucial that recognition and anticipation of these issues occur during initiation and planning.  However, the recognition and management should continue through execution, controlling and closeout.

Please note that McLaughlin and McLaughlin [M&M] is not a law firm and is not intending to provide legal advice.  M&M is a consulting firm providing (among other services) non-legal expertise in dispute resolution and litigation support.  The Resource Center is for the convenience of blog visitors and M&M does not offer this for commercial purposes.  For further information on M&M services, please see www.McLaughlinandMcLaughlin.com.

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PROJECT MANAGEMENT CHALLENGES– Subject Series Summary

March 21, 2012 By

Having recently addressed the AACE International Western Winter Workshop, I am heading for Canada on a new consulting engagement.  Likely, we will have some additional posts and details at a later time.  The press of business has reduced our recent posting activity.  Given this trend and  the large number of new visitors to this blog, we will repost some of the Subject Series Summaries.

This  McLaughlin & McLaughlin‘s Project Professionals summary update provides readers with an overview of prior posts and provides a baseline for future posts that will follow on a timely basis.  This Subject Series, PROJECT MANAGEMENT CHALLENGES was posted during June through September 2011.  Since that time, blog readership has increased significantly.

This summary is very brief and simply serves as an index for readers to follow.  More robust summaries are provided in the June summary.  Of course, detailed descriptions are contained in the individual posts.

Ideally this Subject Series provides a starting point to investigate best practice on many planning and execution features of project management.

Introduction (Part 1) – This post is the first in a series of discussions regarding challenges being encountered in current project management.  This post introduces the topic and sets the framework for ongoing posts on individual challenges.  This series is intended to draw upon many sources within the project management discipline or profession.

Project Initiation (Part 2) – This post addresses the starting point or initiation of the project.  This is a crucial challenge.  The initiation process (getting started formally) requires two processes and deliverables/outputs (see PMBOK® and Kerzner).  Both processes are discussed.

Project Initiation Lessons Learned (Part 3) – This post addresses the starting point or initiation of the project.  The study of lessons learned creates relevance and importance in (sometimes) abstract concepts.  It answers queries regarding the practical side of the issue.  There is a famous quote out there that talks about those that refuse to study history.  It is suggested that you avoid reliving the mistakes experienced by others.

Project Planning Process (Part 4) – This post addresses the project planning process.  This is a crucial challenge and the importance of this process cannot be overstated.  A logical and often asked question is along the lines of “Why plan?” as it can be complicated, time-consuming and aggravating.  There are several key benefits to planning.  These benefits are discussed.

Project Management Plan (Part 5) – This post addresses the Project Management Plan [also known as Project Execution Plan, Project Plan and other titles].  The Project Management Plan can consist of several pages of information and direction or a bookshelf full of many volumes of documents.  These many volumes can have a hierarchical structure.  PMBOK® provides guidance regarding this deliverable/work product.  The Project Management Plan is also known as Project Execution Plan, Project Plan, and other similar titles.

Project Planning Issues (Part 6) – Planning the project properly, documenting the plan professionally and then implementing the plan successfully are likely the source of most project success and failure outcomes.  While project planning is one of the most fundamental skill sets in project management, the requisite processes and actions are not well developed or successfully implemented.

Project Planning Lessons Learned (Part 7) – Learning from the experiences of others is an effective method for skill set development.  Many organizations that use project management on an ongoing basis close out projects with a compilation of “lessons learned.”  These firms have found value in studying the issues that have emerged in the past.

Project Planning Lessons Learned STAKEHOLDER MANAGEMENT (Part 8) – This post continues the focus on issues in planning and problems that have their source or root cause in planning.  The subject is Stakeholder Management.  The use of team and stakeholder workshops can be an effective mechanism for aligning, selling and implementing the Project Management Plan.  Obtain an audience with all stakeholders.  Start with the Project Sponsor.  Sell the Project Management Plan in detail.

Project Planning Lessons Learned RESOURCE REQUIREMENTS (Part 9) – This post continues the focus on issues in planning and problems that have their source or root cause in planning.  The subject is Resource Requirements.  In this regard, the post will focus on human resources or staffing. [Read more…]

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