Claims and Forensic Analysis

PMKI Index
Download
the PMKI
Taxonomy
Location:  PMKI > People Skills & Advanced PM Techniques > Claims and Forensic Analysis. 
 The PMKI Library
Many projects end up in various forms of dispute over time, money quality and/or scope. This subject looks at the causes of project failure and how to manage disputes when they arise.

Topics included in Claims and Forensic Analysis:

- Causes of project failure
- Forensic analysis and reporting
  -  Assessing Delay and Disruption
  -  Concurrent and Parallel Delays
- Claims & Expert Witness
- Casewatch Publications
- Useful External Web-links & Resources.

Other related sections of the PMKI:

- Mosaic's Dispute Management and Support Services


Causes of project failure

Scope for Improvement

Ashurst's Scope for Improvement series of reports focused on major Australian construction projects with an average value in excess of $400 million. Issues identified included inadequate scoping (on average 20% was missed) and inefficient risk allocation.  Almost 50% of the projects finished late and experienced significant cost overruns. Unfortunately, nothing much has changed in the intervening years and the advice and findings in these reports are still relevant today.
- 2006 report: Project Pressure Points
- 2008 report: Project Scoping
- 2011 report: Project Risk
- 2014 report: Project pressure points - where industry stands


Blg: Defining Project Scope. If a project’s client cannot ask for what it needs, the project team is highly unlikely to deliver what’s wanted!

Blg: Scope for improvement 4. A summary of the 'scope for improvement' reports.

Blg: Scope for improvement 4 pt2. The management and delivery of mega projects in Australia; focused on the interlinked topics of productivity, innovation and training.

The report of the UK Construction Task Force - Rethinking Construction (Sir John Egan, 1988), © Crown Copyright.
A copy of this report is available for viewing - download 'Rethinking Construction'

 



Blg: Project or Management Failures? (sources of project failure). The question this blog asks is how many project failures are caused by project management shortcomings and how many failed projects were set up to fail by the organizations management?

Prs: Trust: a tale of two constructions. This blog contrasts Wembley Stadium to the construction of Heathrow Terminal 5 where collaborative contractual arrangements lead to an on time, on budget construction outcome that is unprecedented for a £4 billion airport terminal.

PP: Balanced Baselines - A Fairer Allocation of Uncertain Risks. The use of a Geotechnical Baseline Report (GBR) in the construction contract provides the parties to the contract with a mutual understanding of the subsurface site conditions (the baseline).


Dealing with poor performance

Managing a contractor (or subcontractor) that is failing to perform raises some interesting legal and contractual challenges. My suggestions are:

What not to do: Don't get involved in 'helping' the contractor plan its work, if you do you will accept some responsibility. But do be responsive to sensible suggestions to overcome issues.

What to do:

  1. Make sure payments accurately reflect work actually accomplished.
  2. As far as possible make sure all of the client inputs are delivered in accord with the original program requirements. If these are delivered later than this the contractor can claim 'pacing' if the deliveries actually cause a delay the contractor can claim the delivery was the overriding cause of the delay and seek EOTs with costs - see concurrent and parallel delays below.
  3. Keep really accurate records of everything done on a daily basis. Date stamped photographs help. Signed records are good. Make sure the progress information is shared with the contractor (no surprises).
  4. Expect lots of claims from the contractor and gear up early.
  5. Don't assume the contractors Head Office knows what is going on. Regular requests to the head office to explain schedule slippages each month (eg, contract issued last month was for 1000cu.m. only achieved was 700cu.m - please explain) will put pressure on the site to perform. Focus these requests on one or two key metrics only.
  6. It may help to get expert advice early (but this tends to be expensive).

WP: Contract Termination. When all else fails contract termination may be the only option; but beware - terminating a contract is a high risk activity. This White Paper takes a layman's look at the risks and issues.  


Forensic analysis and reporting (cost & time)

Aspects of project management that are primarily focused on understanding the causes of project issues and problems and/or developing and assessing the implication of issues or problems.

Developing an 'expert' report typically used to defend or prosecute a claim requires a very disciplined approach: It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts (Sir Arthur Conan Doyle). A good 'expert report' is based on researched and validated data, with the determined facts (supported by the data) clearly separated from expert opinion derived from the facts. After many years of practice, we are getting quite good at this.


Assessing Delay & Disruption

Delay claims, linked to disruption and acceleration cost claims are common in the construction and engineering industries and are becoming more common in other projects. A key area of each claim, present in most contractual disputes, involves assertions of delay with associated disruption and/or acceleration costs. This type of claim usually appears after normal contract processes are being severely tested and the contractor has engaged experts to assist its cause. This section is designed to help both industry decision makers, and  ADR and legal professionals, understand the options available to disputants in assessing ‘delay’ to help them quickly cut through the fog of expertise present in many major disputes to achieve a speedy determination.

PP: Assessing Delay and Disruption - Tribunals Beware. Delay claims, linked to disruption and acceleration cost claims are common. This paper:
- Describes the origins, strengths and weaknesses of ‘Critical Path’ scheduling.
- Outlines the current ‘state of play’ with regards to the practice of scheduling.
- Describes the primary approaches to delay analysis, their strengths and weaknesses, including:
    - As-Built v As-Planned
    - Impacted As-Planned
    - Collapsed As-Built
    - Window Analysis and its variant, Time Impact Analysis.
- Describes the type of record needed to support the delay analysis.
It concludes by suggesting some questions a tribunal (or manager) may choose to direct to various scheduling experts appearing before them to ascertain the robustness of the evidence being presented to help turn the mass of data typically accumulated in a ‘claim’ into information. The complexities around concurrent and parallel delays are discussed .

PP: Delay, Disruption and Acceleration Costs. Unfortunately, most prolongation or disruption claims seem to result in excessively large cost claims that damage any possibility of negotiating a reasonable settlement. This paper examines the theoretical underpinnings of ‘delay and disruption’ costs to suggest a realistic basis for their calculation. It is designed to help non-experts see through the ‘smoke and mirrors’ of schedule claims to understand what’s likely to be real, what’s feasible and what’s hyperbole.

Blg: Dealing with client delay. Preventing or minimizing client induced delay is a common issue. Whilst this type of delay can never be completely eliminated, they can be reduced by applying this pragmatic six stage approach.


Concurrent and Parallel Delays

Concurrent Delay"Time is money" is an often heard statement that drives and motivates every player engaged in the project management industry. Ironically it is also the dual elements of time and money that cause some of the most time and money consuming disputes, particularly in the construction and engineering industries. One of the most troubled and complicated area is that relating to the concept of concurrent delay, which is a strongly contested topic. Both parties to a construction contract regularly use concurrent delay as an excuse to avoid responsibility for extension of time claims and the assessment of liquidated damages.

To date there has been no uniform application of legal principles to the concept of concurrent delay. This is largely due to the fact that the answer to the concurrent delay dilemma is complicated because it is requires consideration of the interaction of many different factors. The aim of this section is twofold. The first is to identify the variety of principles or methodologies that may be followed in resolving parallel delays disputes. The second is to outline the various practical aspects relating to dealing with concurrent delays disputes, by examining methods of assessing concurrent delays, categories of information that must be sourced in resolving parallel delays disputes and practical contractual management techniques in securing relevant and contemporaneous information to deal with the consequences of parallel delays within a construction contract.

WP: Concurrent and Parallel Delays. A review of independent, serial and concurrent delays.

PP: Concurrent Delays in Contracts. The concept of concurrent delay is a strongly contested topic in the building and construction industry. The aim of this paper by Jim Doyle is twofold. The first is to identify the variety of principles or methodologies that may be followed in resolving parallel delays disputes. The second is to outline the various practical aspects relating to dealing with concurrent delays disputes (see the original paper).
- Navigant Consulting: Focus on Southeast Asia
- Navigant Consulting: Comparison of English and U.S. Law
- Navigant Consulting: Concurrent Delay and the Critical Path, the AACE Protocol
- Navigant Consulting: Concurrent Delay (USA)

 

Top


Claims & Expert Witness

Mosaic provides expert assistance in the preparation and defence of claims.
See more on our Dispute Management and Support Services page.

Top

WP: Dispute Management in Contracts. An overview of the options and consequences of disputes.

Blg: Using a Risk Management approach for Assessing Claims. Balancing the inevitable costs of pursuing a claim against the possible gains is a difficult but necessary decision before moving forward.

WP: Contract Termination. When all else fails contract termination may be the only option; but beware - terminating a contract is a high risk activity. This White Paper takes a layman's look at the risks and issues.  

 

Defective Work Claims

A defective work claims is the most common claim made by building owners against their building or construction contractor. The cost and consequences associated with resolving a defective work claim can be minimized if the contract is prepared for each individual project setting out effective and feasible methods of risk allocation together with clear obligations in relation to standards, quality and the reliance placed on the contractor's skill and expertise. 

PP: Defective Work Claims. This paper canvases both contractual and common law aspects of making and defending claims for defective work in Australia.
Prs: Defective Work Claims. Download the shorter PowerPoint presentation

 

Adjudication

Preventing disputes is better than resolving disputes. The introduction of Adjudication in the UK and Australia has pressurized project administration, causing a radical re-think of many traditional project management and contract management processes. The Acts apply to every business involved in Building and Construction including contractors, subcontractors, clients, suppliers and professional firms. Construction industry professionals need to address and manage the impact of the Acts on projects in which they are involved. For examples, see the Casewatch series on Adjudication.

 

Dispute Avoidance and Resolution 

 CRC For Construction Innovation (closed 2010):
  - Guide to Leading Practice for Dispute Avoidance and Resolution: An overview
  - Guide to Leading Practice for Dispute Avoidance and Resolution
  - Dispute Avoidance and Resolution (literature review)
  - An exploratory study of project dispute pathogens (journal article)
  - Causal Ascription of Disputes (report)
  - Causal Modelling of Construction Disputes (refereed conference paper)
  - Strategies for Dispute Avoidance (report)

Art: Fairs Fair - Process & Procedural Fairness. When you have to deliver bad news to a person, the processes you use are at least as important as the decision you have made.

 

Top


Casewatch Publications

Casewatch publications are a brief topical report on recent Australian cases in the construction, development, and project industries.
Click through to the full listing.

   

Top


Useful External Web-links & Resources

The Society of Construction Law (SCL) Delay and Disruption Protocol provides guidance to all parties to the construction process when dealing with time/delay matters. The SCL Protocol can be downloaded from: https://www.scl.org.uk/ (free for personal use).
See also the Guide to Good Practice in the Management of Time in Major Projects.

Doyles Construction Lawyers: https://doylesconstructionlawyers.com/

Australian legal forms: https://lawlive.com.au/

Top

Self-paced PMI-SP Training

Risk management template


Self-paced EVM Training

Communication management template


Self-paced EVM Training

Communication management template


Self-paced EVM Training

Communication management template