No our QS capacity is really bad actually. The ones we have on site are pretty pathetic actually and they arent at all proactive. Thanks for your advice, it puts a lot of things in perspective.
Can you define change the works? are you refering to site instructions and VOs? The problem is out controls on site. The PM issues to the site manager instructions (or the design team) which we just go ahead and do. Planners dont get involved (though we should) and the work is happening/happened by the time we record it in the progress updates.
If you are progressing ahead of schedule and you need to keep posseion of the increasing float you need to fill the gap at the end of the programme by putting in a "Contractors Time Risk Contingeny Buffer" and link it between the earlier completion date and the contract completion date.
This way you will retain the original critical path and your float.
Again there is a recent thread on this subject of float and contingency buffers so it will give you a more detailed understanding.
Once the programme has been agreed at contract signature it can only be changed from a PM instruction.
Therefore all unilateral changes made by the PM are instructions to change the works.
Write and ask for a written confirmation of the instruction before proceeding.
I agree with what you are saying. I usually use 10 days anyways, but we do start brickwork earler than 1o days (in between the props to work faster,i,e, mitigate losses caused by the information being late) and also to preempt delays down the line with finishing trades (always being a shortage in South Africa). In other words, we are setting off one delay against a future possible expected delay.
The problems starts with the contract programme being chopped and changed by the PM during the contract award stages before the contract is signed (and we have established so we are at huge risk i guess). From them on, the PM seems to run the programme the way he sees fit. I was just wandering the correct way to handle this. I keep telling the directors that things need to change (our companies are making huge losses in todays market for this very issue).
So you have a curing period of 20 days from concrete slab to start of brickwork.
How is this expressed in your programme?
Planners like to use a lead lag on the link of 20 days duarion - which creates a problem because the outgoing link takes on the calendar from the preceding task.
Your concrete will cure 24hrs 7 days a week - not 8hrs 5 days - so your programme is not representing reality.
Put in a 20 day curing task and set it with a 24/7 calendar
and link between the concrete finish and brickwork start.
This will reflect what is really happening but if the curing period ends in the middle of a weekend you lose the critical path.
Lets say, for example, we had a finish start link between a concrete deck and the brickwork. Lets say we had a curing period of 20 days to the start of the brickwork. Then we start the brickwork on day 10, shouldnt i progress it to start on day 10, thereby be are ahead of programme.
I do make changes as and when they occur, but some things you cant change. For example, you cant start your ceilings (and thus your finishing trades) when the structure isnt watertight (for example and it is an iformation issue of the roof structure) especially in the rainy months. So, in this situation, when the PMs say you can work elsewhere (which you can) but the delay to that area affects the sectional completion and is subject to penalties, what then? Are you obliged to double up resources in such a resource scrapped market? What if you cant get your subbies to work faster?
The contractor is obliged to mitigate delays provided it doesnt cost any money. This is usually done by adjusting logic and/or adjusting resources.
When a delay event occurs my advice is that YOU make the mitigation changes that are possible and cost free before submitting the programme to your PM.
If they then make further changes you put a cost to it and ask if they still want it built that way.
I have a question (sorry a bit long) for you smart, crazy people.
We (a large contracting company) are involved with a bunch of project managers (and i use this term loosely) on various of our majour projects. They are more like watch dogs and couldnt manage their way out of their shower....
We develop a detail programme and supply an information required scheudle (arent we nice) for them to manage (which they royally screw up). I mean none of this is rocket science. Anyways, they have no control over the design team and try to push the delays consistently back onto us. We are constantly at logger heads and they are about as unbiased as our politians (dont let me go there).
Anyways, the question i ask, is that when we supply them a cause and effect, they take our programme, which they get electronically to my dismay, and they adjust it to suit themselves (changing logic, links etc)
Firstly, can they do this?
Secondly, since the programme looks vastly different to the baseline programme, what is the contractual programme? the one we submitt monthly (electronically). I obviously change links and things when we are changing our sequencing and to accomodate actual working conditions. This is very gray to me and they insist we use the baseline (which we do), they then decide what links they want to modify and basically cut our claim down to nothing. What is the correct method of doing this?
The usual rule is that you use the original programme and start your analysis from the first delay event.
Only use Impacted as Planned for the uncompleted part of the works.
For the part that is completed you will have to apply a Time Impact method that may explain why the logic was changed - maybe to mitigate a potential delay.
Your job is to show cause and effect and what actually happened in the Time Impact stage and then cause and effect and the likely impact on future completion dates.
Best regards
Mike Testro
Member for
21 years
Member for21 years1 month
Submitted by Nadim Akhtar on Thu, 2008-09-04 17:16
Hi, hope you are doing fine. Need your guidance once again. I have to prepare a claim for time extension for the contractor. I will use the Impacted as Planned analysis. The issue is that four months after project start the baseline was revised. For several activities, actual start and finished were included and some dependencies were changed. I am confused that which baseline should be considered in the analysis, the original or the revised one.
Best regards
Nadim
Member for
21 years
Member for21 years1 month
Submitted by Nadim Akhtar on Sun, 2008-08-31 07:41
I believe you need to have a formal forensic claims degree and a least 10+ years analyst experience to work in the field of forensic claims.
Although I think I heard of one case when a planning engineer became a forensic claims analyst, but that’s probably just an urban myth.
God forbid they let in any old keyboard jockey with a cowboy engineering degree, I wouldn’t want this exulted discipline to become the new residence of Mickey Mouse and Donald Duck!! ;o)
Answer is simple: Architects and Engineers are just too lazy and/or incompetent that no sane Contractor entrusts them to make a fair or correct determination, therefore the Contractor protects his interests by leading/guiding the Architect or Engineer by doing his work for him!
Besides that, how do you think we claims consultants make an honest crust? Salt of the earth, we are!! ;-)
Cheers,
Stuart
Member for
20 years 3 months
Member for20 years4 months
Submitted by Charleston-Jos… on Thu, 2008-06-26 04:23
Not uncommon to find, many Architects suffer from the same defect!!!!!!!
Stuart,
Similar with Engineers although not all engineering contracts contain a time limit by which the Engineer has to make his determination. Most do these days though but it doesnt seem to make much difference.
I was at an adjudication last year - JCT Form - where the Contractor had not submitted his EOT claim until after the 12 weeks review period was over.
The Architect refused to consider the late submission.
The adjudicator correctly ruled against the Architect because he should have awarded an EOT without an submission from the Contractor.
This was a case of plain ignorance - the Architect had not understood the wording of the clause.
I went on to suggest that because the contractor had done the Architects work for him the Client should pay my fees - got nowhere with that but it was worth a punt.
I have only once seen a situation where the Contractor having failed to provide a proper SIS to claim his EoT, the Client went about and produced a SIS to demonstrate that the Contractors claim was crap! (Guess which side I was working for? Answers on a post card please.....!!)
Mmmmm.....quiet day in the office now that the Dutch are out of the European Champs. ;-)
Member for
20 years 10 months
Member for20 years11 months
Submitted by Andrew Flowerdew on Wed, 2008-06-25 09:01
I can’t think of a single case where the contractor has just supplied information, but then I can’t think of a single case where the Engineer/Architect has realised that it is actually up to him or her, not the contractor, to ascertain the facts and then make the decision accordingly!!!!!!!
Every contractor submits some form of analysis, every contract administrator expects them too, in fact many CA’s try to hide behind the fact that the contractor hasn’t submitted his detailed claim in order not to make a decision.
Not what most contracts says should happen but I agree, it’s what everybody does and always happens.
Whilst I agree with Andrew that it is up to the Contractor to provide sufficient information for the Engineer to make his determination, and not necessarily the Contractors task to prove entitlement, in most complex cases the Contractor will nevertheless demonstrate by way of a Schedule Impact Study that he is entitled to an excusable delay. (Whether that excusable delay is also compensable is a different matter).
The Contractors Schedule Impact Study will more than likely be predicated on the (not unreasonable) belief by the Contractor that since he is pursuing his claim (as a Claimant) then the onus is on him to demonstrate that his case is supportable. The Contractor will doubtless consider that his Schedule Impact Study is indeed "sufficient information" for the Engineer to make his determination, whilst simultaneously setting out his contractual entitlement to same.
The Engineer, of course, may determine that the Schedule Impact Study is flawed, in which case his determination will reflect the flawed Study and the Contractor will have shot himself in the foot!
Cheers,
Stuart
Member for
17 years 5 months
Member for17 years5 months
Submitted by Rolando Caminero on Sat, 2008-06-07 16:31
That’s FIDIC, which is somewhat more strictly worded than most standard forms - it expressly asks for a fully detailed claim to be sent from the contractor and the contractor to keep contemporary records - but it is still up to the Engineer to make his own determination on the information provided, not the contractor to prove it.
Providing full details and particulars, (contemporary records), is not the same as having to prove your claim. Admittedly most contractors try to however and most Engineers think it is the contractors job to do so beyond reasonable doubt.
In the case of FIDIC (later editions) and the 28 days - it is not giving notice of the claim that time bars you. If you don’t follow up a notice with information then:
Cl20 Engineer..... take into account the extent to which the failure has prevented or prejudiced proper investigation of the claim ......
Interesting thought - however it is THE JOB of the ENGINEER to make HIS determination of the extension of time due, not very often the job of the contractor to prove his entitlement although some contracts may be worded this way.
Normally the contractor is ONLY obliged to provide such information that is reasonably required in order for THE ENGINEER to make his decision.
The standard of proof required is also "on the balance of probabilities" and not "beyond reasonable doubt".
Member for
17 years 5 months
Member for17 years5 months
Submitted by Rolando Caminero on Sat, 2008-06-07 05:13
Option 1 is attractive however, the other side of the table has said schedules or programmes and would know immediately that it had been tampered with.
Option 2 goes back the "cost of analysis" issue.
As you mentioned, Integrity is important and so is job security. As it turns out, my level 1 analysis is being held in someones back pocket as they attempt to negotiate a settlement as we speak.
Thanks Guys. I totally agree with your statements. Quite frankly, I knew most of what you were saying would be required. The other issue I run into is time and money. Specific answers are expected by my client/boss from the schedule, in the shortest amount of time possible. They want me to tell them that the schedule supports their argument - that the subcontractor held up the project. I did not and was not involved in the project or its schedule. updates were done in the field. There is missing data, out of sequence progress, etc.
I belive my conclusion will more than likely be that the schedule will not tell the story they would like it to tell.
Dave
Member for
20 years 10 months
Member for20 years11 months
Submitted by Andrew Flowerdew on Wed, 2008-05-28 07:05
Stuart has got it spot on - forensic analysis is 90% sifting through the records etc to find out what ACTUALLY happened, 5% computer analysis and 5% report writing - or there abouts. There’s no quick and easy way of doing it, just alot of research.
Stuarts tip - One tip - do not assume anything; chances are you will be wrong and will be severely embarrassed if your guesses make the wrong accusations! Spot on.
My tip - Don’t believe anyone!!!!! That’s not to say anyone is not telling you the truth, it’s just the truth as they remember or perceived it. Listen, take notes and then find the evidence to back up what was said. If the evidence, (records, letters, etc), tells you something else, then it’s the evidence you follow, not what someone told you.
It’s the old situation – two people from two different positions see a car crash. The police take statements and they’re so different you would think they were talking about two different crashes. They’re not, just seen from different positions gave two different perceptions of what happened. Both might be partially right, only one might be right or quite possibly something else ACTUALLY happened that neither witness realised.
And it’s your job to find out what ACTUALLY happened.
Research all relevant documents and talk to everyone you can to find out the answers to your question; the answers are not to be found in your computer!
Talk to site staff, especially to the subcontract manager or equivalent; talk to the subcontractor himself - he will know your answers!
Check correspondence, minutes of meetings and other documents to find out what happened in the historical past.
Did the subcontractor send any letters telling you of his problems? Were there difficulties in his suppliers? Did the main contractor hold him up in any way? Did an earlier subcontractor delay his start?
Was the detailed engineering work - if carried out by someone else - completed in time?
You havent told us what the subcontractors workscope was, but was he installing something (electrical, I&C, mechanical) that required coordination with others?
If you find no answers from these external sources, then the problem may very well have been caused internally by the subcontractor himself; did he provide enough labour resources?; were materials ordered in time?
It all comes down to hard graft and research to find the truth. One tip - do not assume anything; chances are you will be wrong and will be severely embarrassed if your guesses make the wrong accusations!
Member for
21 years 3 monthsRE: Forensics - How to determine why?
No our QS capacity is really bad actually. The ones we have on site are pretty pathetic actually and they arent at all proactive. Thanks for your advice, it puts a lot of things in perspective.
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Danya
An instruction to change the works can include the nature of the work being carried out and/or the sequence in which it is done.
Therefore an instruction to change the sequence is a change order.
In some forms of contract the PM is not empowered to change the sequence of works so check your contract first.
If he is empowered then make sure that the correct contractual sequence is being recorded and notified.
Is your site QS picking up on the value of these changes?
Best regards
Mike Testro
Member for
21 years 3 monthsRE: Forensics - How to determine why?
Can you define change the works? are you refering to site instructions and VOs? The problem is out controls on site. The PM issues to the site manager instructions (or the design team) which we just go ahead and do. Planners dont get involved (though we should) and the work is happening/happened by the time we record it in the progress updates.
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Danya
If you are progressing ahead of schedule and you need to keep posseion of the increasing float you need to fill the gap at the end of the programme by putting in a "Contractors Time Risk Contingeny Buffer" and link it between the earlier completion date and the contract completion date.
This way you will retain the original critical path and your float.
Again there is a recent thread on this subject of float and contingency buffers so it will give you a more detailed understanding.
Once the programme has been agreed at contract signature it can only be changed from a PM instruction.
Therefore all unilateral changes made by the PM are instructions to change the works.
Write and ask for a written confirmation of the instruction before proceeding.
Best regards
Mike Testro
Member for
21 years 3 monthsRE: Forensics - How to determine why?
I agree with what you are saying. I usually use 10 days anyways, but we do start brickwork earler than 1o days (in between the props to work faster,i,e, mitigate losses caused by the information being late) and also to preempt delays down the line with finishing trades (always being a shortage in South Africa). In other words, we are setting off one delay against a future possible expected delay.
The problems starts with the contract programme being chopped and changed by the PM during the contract award stages before the contract is signed (and we have established so we are at huge risk i guess). From them on, the PM seems to run the programme the way he sees fit. I was just wandering the correct way to handle this. I keep telling the directors that things need to change (our companies are making huge losses in todays market for this very issue).
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Danya
So you have a curing period of 20 days from concrete slab to start of brickwork.
How is this expressed in your programme?
Planners like to use a lead lag on the link of 20 days duarion - which creates a problem because the outgoing link takes on the calendar from the preceding task.
Your concrete will cure 24hrs 7 days a week - not 8hrs 5 days - so your programme is not representing reality.
Put in a 20 day curing task and set it with a 24/7 calendar
and link between the concrete finish and brickwork start.
This will reflect what is really happening but if the curing period ends in the middle of a weekend you lose the critical path.
Best regards
Mike Testro
Member for
21 years 3 monthsRE: Forensics - How to determine why?
I am confused.
Lets say, for example, we had a finish start link between a concrete deck and the brickwork. Lets say we had a curing period of 20 days to the start of the brickwork. Then we start the brickwork on day 10, shouldnt i progress it to start on day 10, thereby be are ahead of programme.
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Danya
The logic changes that you are describing are not allowed.
Neityher are you obliged to engage increased labour at extra cost.
My advice is to start getting your delay notices out and refusing to accept any further adjustments to your programme.
Best regards
Mike Testro
Member for
21 years 3 monthsRE: Forensics - How to determine why?
Hi Mike,
Thanks for replying.
I do make changes as and when they occur, but some things you cant change. For example, you cant start your ceilings (and thus your finishing trades) when the structure isnt watertight (for example and it is an iformation issue of the roof structure) especially in the rainy months. So, in this situation, when the PMs say you can work elsewhere (which you can) but the delay to that area affects the sectional completion and is subject to penalties, what then? Are you obliged to double up resources in such a resource scrapped market? What if you cant get your subbies to work faster?
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Danya
The contractor is obliged to mitigate delays provided it doesnt cost any money. This is usually done by adjusting logic and/or adjusting resources.
When a delay event occurs my advice is that YOU make the mitigation changes that are possible and cost free before submitting the programme to your PM.
If they then make further changes you put a cost to it and ask if they still want it built that way.
Best regards
Mike Testro
Member for
21 years 3 monthsRE: Forensics - How to determine why?
I have a question (sorry a bit long) for you smart, crazy people.
We (a large contracting company) are involved with a bunch of project managers (and i use this term loosely) on various of our majour projects. They are more like watch dogs and couldnt manage their way out of their shower....
We develop a detail programme and supply an information required scheudle (arent we nice) for them to manage (which they royally screw up). I mean none of this is rocket science. Anyways, they have no control over the design team and try to push the delays consistently back onto us. We are constantly at logger heads and they are about as unbiased as our politians (dont let me go there).
Anyways, the question i ask, is that when we supply them a cause and effect, they take our programme, which they get electronically to my dismay, and they adjust it to suit themselves (changing logic, links etc)
Firstly, can they do this?
Secondly, since the programme looks vastly different to the baseline programme, what is the contractual programme? the one we submitt monthly (electronically). I obviously change links and things when we are changing our sequencing and to accomodate actual working conditions. This is very gray to me and they insist we use the baseline (which we do), they then decide what links they want to modify and basically cut our claim down to nothing. What is the correct method of doing this?
All i can say is HELP US ALL!!!!!!
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Nadim
The usual rule is that you use the original programme and start your analysis from the first delay event.
Only use Impacted as Planned for the uncompleted part of the works.
For the part that is completed you will have to apply a Time Impact method that may explain why the logic was changed - maybe to mitigate a potential delay.
Your job is to show cause and effect and what actually happened in the Time Impact stage and then cause and effect and the likely impact on future completion dates.
Best regards
Mike Testro
Member for
21 yearsRE: Forensics - How to determine why?
Hi, hope you are doing fine. Need your guidance once again. I have to prepare a claim for time extension for the contractor. I will use the Impacted as Planned analysis. The issue is that four months after project start the baseline was revised. For several activities, actual start and finished were included and some dependencies were changed. I am confused that which baseline should be considered in the analysis, the original or the revised one.
Best regards
Nadim
Member for
21 yearsRE: Forensics - How to determine why?
Mike thanks a lot. I will be disturbing you guys from time to time.
Best regards
Nadim
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Nadim
1. Yes - some products are better than others - I use PowerProject rather than P3. Microsoft Project is lightweight - as is Suretrak.
2. They are:
Impacted as Planned - Use for ongoing delays for work in progress
As Planned v As Built - Use for sub-contract works sandwiched between othe trades
Time Impact - Use for forensic delay analysis but only if the As Built Records are up to the task.
Collapsed as Built - Dont even think about it.
Best regards
Mike Testro
Member for
21 yearsRE: Forensics - How to determine why?
Thx Mike for your reply. I asked Darren this question as he has mentioned in one of the threads in this forum about a formal qualification.
Mike in your reply I need to clarify two things;
1/ Software: You mean Primavera or some other software
2/ What are the four analysis methods?
Best regards
Nadim
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Nadim
Darren will probably tell you the same.
There is no formal qualification to be a delay analyst.
Some of the things you need to know are:
1. How to build things.
2. How to work the software.
3. Which of the 4 analysis methods are applicable to the situation & which to avoid.
4. How the project contract terms will guide you to the choice in 3 above.
5. How good the records are.
6. Do you believe what you are being told.
7. How do you apply the rules of concurrency.
You can read any number of books and articles but until you have done it yourself and faced a tribunal you will never know if you can do it or not.
I am fortunate in that I started delay analysis 10 years ago before the SCL protocol in 2002.
Since then things have got to be very formalised and complex.
There is no harm in giving it a try.
Start as a junior in a claims consultancy and if you can learn how to do 1 to 7 above in a year or two then you are well on your way.
Best regards
Mike Testro
Member for
21 yearsRE: Forensics - How to determine why?
Darren,
Would you please let me know what is the formal degree required to be a forensic claim analyst, and if it is possible to get it online.
Best regards
Nadim
Member for
19 years 7 monthsRE: Forensics - How to determine why?
My Mathematics degree is paying large dividends.
And to think that I once wanted to be a theoretical physicist!
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Charleston
Dont despair - anyone can be a delay analyst.
I used to do numbers claims until I bought some software and taught myself programming.
I then called myself a delay analyst and put my rates up.
The most useful qualification I possess is GCE carpentry which I got in 1964 - not much CPD needed for that.
Best regards
Mike Testro
Member for
20 years 3 monthsRE: Forensics - How to determine why?
BTW,
Neil Armstrong was the American Astronaut that first landed in the moon sometimes in 1969.
I was then a small 7 year old boy, laying in our bermuda lawn, watching the moon if indeed the American astronauts landed in the moon.
That what he said: "ONE SMALL STEP IS A GIANT LEAP FOR MANKIND
Somehow we have our own small steps that may lead us or leap from our present situation
Member for
20 years 3 monthsRE: Forensics - How to determine why?
Darren / Stuart,
This is what is PP for. Small idea will make wild imagination from PP members. Maybe Im a new competitor.
But as Neil Armstrong said: One smal step is a giant leap for mankind.
In the same way, a samall dip of my finger maybe, maybe
a rewarding lifetime career for me as forensic claim specialist.
Member for
17 years 9 monthsRE: Forensics - How to determine why?
Stuart,
I told you to stop quoting my CV!!
Regards,
Darren
Member for
21 years 4 monthsRE: Forensics - How to determine why?
Darren,
You forgot the PhD in Bullshitting!
Cheers,
Stuart
Member for
17 years 9 monthsRE: Forensics - How to determine why?
Sorry Charleston,
I believe you need to have a formal forensic claims degree and a least 10+ years analyst experience to work in the field of forensic claims.
Although I think I heard of one case when a planning engineer became a forensic claims analyst, but that’s probably just an urban myth.
God forbid they let in any old keyboard jockey with a cowboy engineering degree, I wouldn’t want this exulted discipline to become the new residence of Mickey Mouse and Donald Duck!! ;o)
Regards,
Darren
Member for
21 years 4 monthsRE: Forensics - How to determine why?
Mike,
Dont be misled!
Ze Germans are as claims conscious as ze Brits; why do you think I am busier than a one-armed wall paper hanger?
Stuart
Member for
20 years 3 monthsRE: Forensics - How to determine why?
WOW guys,
I agree with that.
Hmm,
Maybe time to change for a career as forensic claim specialist.
Do you think the world is not enough.
meaning is there room for a newbie like me to join the fun, ehe, work.
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Stuart
Regarding honest crusts I was putting together an EOT for a German cladding contractor on a job in London.
Their MD came over for a review of progress and he was ranting on about how the UK market was all claims and adjudications.
I said "Well if it wasnt like that I would be starving"
He looked me in the eye and replied "Ve can live vith dat"
Who said they dont have a sense of humour.
Best regards
Mike Testro
Member for
21 years 4 monthsRE: Forensics - How to determine why?
Charlie
Answer is simple: Architects and Engineers are just too lazy and/or incompetent that no sane Contractor entrusts them to make a fair or correct determination, therefore the Contractor protects his interests by leading/guiding the Architect or Engineer by doing his work for him!
Besides that, how do you think we claims consultants make an honest crust? Salt of the earth, we are!! ;-)
Cheers,
Stuart
Member for
20 years 3 monthsRE: Forensics - How to determine why?
In conclusion:
Contract Theory: THE ARCHITECT OR ENGINEER will do the determination
In reality: THE CONTRACTOR will be doing the justification of contractors entitlement.
crazy world of construction contracting but true.
Why we allos this to happen?????
Member for
17 years 5 monthsRE: Forensics - How to determine why?
Architects and Engineers,
decision - based on submitted documents?
do you think they will show you the facts?
nay, they sometimes dont know it themselves,
in a short period of time and limited proof,
you will make a decision?
delayed decision on a delay claim,
it rhymes, i love construction ,,,,,
Member for
20 years 10 monthsRE: Forensics - How to determine why?
Mike,
Not uncommon to find, many Architects suffer from the same defect!!!!!!!
Stuart,
Similar with Engineers although not all engineering contracts contain a time limit by which the Engineer has to make his determination. Most do these days though but it doesnt seem to make much difference.
Member for
21 years 4 monthsRE: Forensics - How to determine why?
Hi Mike,
Confirms my view of Architects!! (and FIDIC Engineers not far behind!!)
Cheers,
Stuart
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Stuart - Andrew
I was at an adjudication last year - JCT Form - where the Contractor had not submitted his EOT claim until after the 12 weeks review period was over.
The Architect refused to consider the late submission.
The adjudicator correctly ruled against the Architect because he should have awarded an EOT without an submission from the Contractor.
This was a case of plain ignorance - the Architect had not understood the wording of the clause.
I went on to suggest that because the contractor had done the Architects work for him the Client should pay my fees - got nowhere with that but it was worth a punt.
Best regards
Mike T.
Member for
21 years 4 monthsRE: Forensics - How to determine why?
Hi Andrew,
Yes - how true!! ;-)
I have only once seen a situation where the Contractor having failed to provide a proper SIS to claim his EoT, the Client went about and produced a SIS to demonstrate that the Contractors claim was crap! (Guess which side I was working for? Answers on a post card please.....!!)
Mmmmm.....quiet day in the office now that the Dutch are out of the European Champs. ;-)
Member for
20 years 10 monthsRE: Forensics - How to determine why?
Stuart,
I can’t think of a single case where the contractor has just supplied information, but then I can’t think of a single case where the Engineer/Architect has realised that it is actually up to him or her, not the contractor, to ascertain the facts and then make the decision accordingly!!!!!!!
Every contractor submits some form of analysis, every contract administrator expects them too, in fact many CA’s try to hide behind the fact that the contractor hasn’t submitted his detailed claim in order not to make a decision.
Not what most contracts says should happen but I agree, it’s what everybody does and always happens.
Member for
21 years 4 monthsRE: Forensics - How to determine why?
Ronaldo,
Whilst I agree with Andrew that it is up to the Contractor to provide sufficient information for the Engineer to make his determination, and not necessarily the Contractors task to prove entitlement, in most complex cases the Contractor will nevertheless demonstrate by way of a Schedule Impact Study that he is entitled to an excusable delay. (Whether that excusable delay is also compensable is a different matter).
The Contractors Schedule Impact Study will more than likely be predicated on the (not unreasonable) belief by the Contractor that since he is pursuing his claim (as a Claimant) then the onus is on him to demonstrate that his case is supportable. The Contractor will doubtless consider that his Schedule Impact Study is indeed "sufficient information" for the Engineer to make his determination, whilst simultaneously setting out his contractual entitlement to same.
The Engineer, of course, may determine that the Schedule Impact Study is flawed, in which case his determination will reflect the flawed Study and the Contractor will have shot himself in the foot!
Cheers,
Stuart
Member for
17 years 5 monthsRE: Forensics - How to determine why?
Yeah, not necessarily beyond reasonable doubt.
The point is that contractors must establish that they dont have a share or in any way contribute to the cause of the delay,
Excusable but not compensable,,,,
Where can the Engineer determine that?
Member for
20 years 10 monthsRE: Forensics - How to determine why?
That’s FIDIC, which is somewhat more strictly worded than most standard forms - it expressly asks for a fully detailed claim to be sent from the contractor and the contractor to keep contemporary records - but it is still up to the Engineer to make his own determination on the information provided, not the contractor to prove it.
Providing full details and particulars, (contemporary records), is not the same as having to prove your claim. Admittedly most contractors try to however and most Engineers think it is the contractors job to do so beyond reasonable doubt.
In the case of FIDIC (later editions) and the 28 days - it is not giving notice of the claim that time bars you. If you don’t follow up a notice with information then:
Cl20 Engineer..... take into account the extent to which the failure has prevented or prejudiced proper investigation of the claim ......
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi Andrew
Just a quick thought.
How does your response here square up with your earlier answer to the 28 day notice thread.
Best regards
Mike Testro
Member for
20 years 10 monthsRE: Forensics - How to determine why?
Rolando,
Interesting thought - however it is THE JOB of the ENGINEER to make HIS determination of the extension of time due, not very often the job of the contractor to prove his entitlement although some contracts may be worded this way.
Normally the contractor is ONLY obliged to provide such information that is reasonably required in order for THE ENGINEER to make his decision.
The standard of proof required is also "on the balance of probabilities" and not "beyond reasonable doubt".
Member for
17 years 5 monthsRE: Forensics - How to determine why?
Send back provoking questions to the one claiming for EOT and prolongation cost.
Make him work for you, ie, justifying the claim with supporting documents,
Chasing after documents and proof is the only way,,
Unless they are cooperating, there is no way you can make an informed decision,
Else, you are making assumptions on your own which is risky,
Member for
20 years 4 monthsRE: Forensics - How to determine why?
Mike;
Option 1 is attractive however, the other side of the table has said schedules or programmes and would know immediately that it had been tampered with.
Option 2 goes back the "cost of analysis" issue.
As you mentioned, Integrity is important and so is job security. As it turns out, my level 1 analysis is being held in someones back pocket as they attempt to negotiate a settlement as we speak.
Hopefully, it goes no further.
Thanks for the feedback.
Member for
19 years 10 monthsRE: Forensics - How to determine why?
Hi David
You are facing a very common situation where your boss wants you to support his theory when your programme cannot do it.
You have two options.
1. Fiddle the programme so that it fits the theory.
2. Explain why the theory cannot be supported by the programme.
The balance between your integrity and job security will determine the outcome.
Good Luck.
Mike Testro
Member for
20 years 4 monthsRE: Forensics - How to determine why?
Thanks Guys. I totally agree with your statements. Quite frankly, I knew most of what you were saying would be required. The other issue I run into is time and money. Specific answers are expected by my client/boss from the schedule, in the shortest amount of time possible. They want me to tell them that the schedule supports their argument - that the subcontractor held up the project. I did not and was not involved in the project or its schedule. updates were done in the field. There is missing data, out of sequence progress, etc.
I belive my conclusion will more than likely be that the schedule will not tell the story they would like it to tell.
Dave
Member for
20 years 10 monthsRE: Forensics - How to determine why?
David,
Stuart has got it spot on - forensic analysis is 90% sifting through the records etc to find out what ACTUALLY happened, 5% computer analysis and 5% report writing - or there abouts. There’s no quick and easy way of doing it, just alot of research.
Stuarts tip - One tip - do not assume anything; chances are you will be wrong and will be severely embarrassed if your guesses make the wrong accusations! Spot on.
My tip - Don’t believe anyone!!!!! That’s not to say anyone is not telling you the truth, it’s just the truth as they remember or perceived it. Listen, take notes and then find the evidence to back up what was said. If the evidence, (records, letters, etc), tells you something else, then it’s the evidence you follow, not what someone told you.
It’s the old situation – two people from two different positions see a car crash. The police take statements and they’re so different you would think they were talking about two different crashes. They’re not, just seen from different positions gave two different perceptions of what happened. Both might be partially right, only one might be right or quite possibly something else ACTUALLY happened that neither witness realised.
And it’s your job to find out what ACTUALLY happened.
Member for
21 years 4 monthsRE: Forensics - How to determine why?
David,
The secret lies in research!
Research all relevant documents and talk to everyone you can to find out the answers to your question; the answers are not to be found in your computer!
Talk to site staff, especially to the subcontract manager or equivalent; talk to the subcontractor himself - he will know your answers!
Check correspondence, minutes of meetings and other documents to find out what happened in the historical past.
Did the subcontractor send any letters telling you of his problems? Were there difficulties in his suppliers? Did the main contractor hold him up in any way? Did an earlier subcontractor delay his start?
Was the detailed engineering work - if carried out by someone else - completed in time?
You havent told us what the subcontractors workscope was, but was he installing something (electrical, I&C, mechanical) that required coordination with others?
If you find no answers from these external sources, then the problem may very well have been caused internally by the subcontractor himself; did he provide enough labour resources?; were materials ordered in time?
It all comes down to hard graft and research to find the truth. One tip - do not assume anything; chances are you will be wrong and will be severely embarrassed if your guesses make the wrong accusations!
Hope this helps.
Stuart