Issue Identification and Appraisal
Blogs 22 thru’ 25 have covered some of the knowledge shortfalls that require enhancement to increase my opportunity of a successful result in the GPC ‘Expert Level’ examination.
The GPC’s self-assessment questionnaire uncovered a few deficient knowledgeable areas that need addressing. In order to better understand the subject areas development of blogs to assist learning about the areas is a way to better absorb the content. The final few blogs will all have the same problem statement, “What subject areas need knowledge advancement prior to undertaking the GPC Expert Level Project Controls examination?”
The deficient subject areas can be termed feasible alternatives, and these are:
- Monte Carlo Simulation – covered in Blog 23
- Configuration Management – covered in Blog 24
- BIM Modelling – covered in Blog 25
- Project Forensics
- Stakeholder Engagement – covered in Blog 22
- Contract Selection
- Management Competencies
The above list is based on the results from the GPC’s self-assessment which was performed in May’2017 and is a summary of seven areas that need enhancement in the coming weeks. Hopefully a blog can be developed for each item during the remaining weeks the course runs. For Blog 26, the subject will be “Project Forensics”, a subject that the author has had to supply information too external parties on several occasions during his working life in the Oil & Gas Industry. Many of the instances have been caused as a result of following: poor contracting strategy, selection of a poor performing contractor as it fitted the budget constraints, and badly defined Scope of Works.
The author on many occasions has been advised too much time is used generating analysis/information that not many people look at, well they don’t look at until it’s too late, and then it’s why, why, why? The generation of such analysis is in the belief that too much information is better than not enough, a person can always discard stuff, but if it needs to be developed it takes time, and sometimes time is not what a practitioner has a lot off.
Develop the Outcomes for each
Each remaining blog will develop an outcome for each “Feasible alternative” (FA) subject as the subject gets reviewed, it will not identify an outcome for the other FA’s in that blog.
Like many of the other subjects being reviewed “Forensics” crosses multiple modules in the GPCCAR; M01-1 “Introduction to Managing Project Controls”, M12-1 “Introduction to Managing Forensic Analysis”, M12-2 “Developing the Managing Forensic Analysis Policies & Procedures Manual”, M12-3 “Conduct the Preliminary Analysis”, M12-4 “Conduct the Schedule Analysis”, M12-5 “Damage Analysis Phase”, M12-6 “Settlement Negotiations Phase” and M12-7 “Formal Disputes Resolution”.
Below is the list of items that this blog will address.
Table 1 – Forensic items in GPCCAR Self-assessment
As can be seen from the assessment there are 4 groups which encompasses 12 items.
The criteria for this blog is found in several areas in the GPCCAR, as well as some online research;
- M12-1 “Introduction to Managing Forensic Analysis”.
- M12-2 “Developing the Managing Forensic Analysis Policies & Procedures Manual”
- M12-3 “Conduct the Preliminary Analysis”
- M12-4 “Conduct the Schedule Analysis”
- M12-5 “Damage Analysis Phase”
- M12-6 “Settlement Negotiations Phase”
- M12-7 “Formal Disputes Resolution”
Analysis and Comparison of the Alternatives
What is a) Project Forensics and b) how can the Project Controls Practitioner be better prepared for it?
The answers are;
- The study of the effects that certain events have on activities in a CPM calculated schedule, understanding the cause and effects of these events by their significance of deviations from the baseline. The results of which are normally used in legal proceedings. One must remember that Schedule Forensics is not only a science and an art, it is also distinct area outside of planning and scheduling – it’s a highly specialized field of expertise.
- There are several documents and web-sites available to provide guidance for practitioners to be prepared for such events, most are based around the AACE International Recommended Practice 29R-03, which as the document suggests are recommendations that practitioners might use to aid in the creation of a competent work product. That said, it behooves any project control practitioner to follow the guidelines reflected in the GPCCAR, which would undoubtedly suggest that “all the bases are covered” and his/her project is well documented and analyzed to avoid any delay claims and disputes. In other words, be proactive and not reactive.
Let’s look at the GPCCAR sections, where possible the wording has been crafted to the authors own wording, however in some situations what has been written is not different to how the author would have word-smithed it whereby full credit goes to the GPCCAR authors as noted in the references below. In all the blogs 23 thru’ 26 this has been the case, and there has been no intent to plagiarize any work by others.
Item 1 – How to identify, capture and use the data from the QA/QC processes as they pertain to project controls (GPCCAR Module 12.3)
Quality Assurance records are a very good source of records of when particular elements of a project have been completed. In the Oil and Gas Industry and in particular on projects, where safety is paramount, there is a requirement for a very high level of quality documentation, ensuring that materials, equipment(s), weld acceptance rates, pipe hydro-testing, E&I cable checking, HV Power Hi-pot testing, etc., have all met their applicable codes and regulations while being installed to ensure there is no defective work.
Typical projects may have QA records for the following construction elements:
- Concrete test results
- Weld Certificates
- Piping Hydro-testing, Reinstatement & Box-up records
- Electrical Hi-pot test results
- Instrument Loop checks
- Earthwork inspection
- Excavation and confined space safety
- Underground pipeline construction
- Structural Steelwork fabrication, assembly and erection
- Scaffolding Safety Certificates
QA commences when a project commences, and is instrumental in all the phases of the project (i.e. Engineering, Procurement, Construction and Commissioning) Oil and Gas companies are ISO certified and utilize systems accredited to same, to ensure that contractual obligations have also been met. Examples include; drawing and specification revisions, correspondence registers, insurance renewal certificates, notification of claims, settlement of third party claims, and subcontract correspondence. QA documentation can be extremely useful as reference points during the preparation of any as-built schedules when the necessity of actual dates is critical. These dates should match those in any project schedule update, however there are cases when these are not, as the practitioner did not check the processes and assumed what was seen was completed.
Nowadays, there is a greater demand on accountability than before, and with the big advances in technology there is no excuse for poor record keeping. If it is the case, that records are poor, the blame lies squarely on bad project management, and It is up to all of us professionals in the engineering and construction industries to ensure that accurate records are kept. Keeping records of the type above will go some way to achieving that aim.
Item 2 – How to identify, capture and use the data from the witnesses of fact as they pertain to project controls (GPCCAR Module 12.3)
It can be useful to interview the project participants who would normally be the fact witnesses, but care should be taken that information received from these participants is not at variance with the contemporaneous documentation from the project. Witness memories can be unreliable, or biases of the participants from long periods of dealing with the project issues may show up in expressions of opinion as fact.
When there are witness statements, those are more likely to have been researched for accurate documents than depositions relying upon the witness memories and question and answer sessions. In either case, research into the documents should support reasonable and accurate fact witness conclusions.
One method to assist with accurate record keeping is to have the key project participants generate a daily log of activities/observations which is compiled into a dossier for each key individual on the project.
Item 3 – How the various negotiation techniques and is and how it impacts or affect the roles and responsibilities of the project controller (GPCCAR Module 12.6)
Figure 1 – Conduct the Settlement Negotiations Process Map (GPCCAR)
As we can see from the graphic below, prevention or early resolution is the more preferable or ideal strategy to adopt in resolving disputes. Implicit in this is the necessity for the project control professional to develop the appropriate negotiating skills to participate in and support the Alternate Dispute Resolution (ADR) process, regardless of which level of escalation it has reached.
Figure 2 – ADR Process Escalation Steps (GPCCAR)
The GPCCAR’s module assumes that the Prevention and Cooperation Stage to the Dispute Control Stage (1) are “in house” negotiations and more or less informally, preferably at the project level, where the project control professional is in a position to play a key leadership role not only as subject matter expert, but also as a facilitator.
Figure 3 – Detailed Process Flow Chart for Conduct Settlement Negotiations (GPCCAR)
This process, even though it is less formal and generally less adversarial, doesn’t mean it can be treated as unimportant or without a proper and appropriate level of professionalism.
(1) All parties need to have a full and complete understanding of all the issues, from all sides. Failure to understand and appreciate the position of the opposing side will make productive negotiations difficult if not impossible. There needs to mutual respect for the issues even though there is disagreement.
(2) Depending on how much animosity has been generated, it would be preferable for all parties to meet with the objective to be proactive in reaching a settlement.
(3) As mediation and negotiations requires training and a unique set of people skills, it is preferable if a trained mediator/negotiator is employed as an independent third party to facilitate the negotiations.
(4) Assuming agreement has been reached, and the claim/dispute is settled, the appropriate documents are drafted, signed and settlement is made promptly per what was agreed to.
In the GPCCAR Module 5 “Managing Contracts”, there are three tests or barriers that either party must prove or overcome in order to perfect or validate a claim:
• Entitlement – the parties had a contractual/legal duty/obligation to each another and that one party failed to perform that duty, or performed it improperly or untimely.
• Quantum Meruit – that one or more of the parties to the contract incurred additional costs or otherwise suffered damages.
• Causal Relationship – and that those additional costs or damages were incurred as a result of the Entitlement above.
We also know that “prevention is often better than cure” which means that the first responsibility as a project controls practitioner should be to try to PREVENT claims and disputes.
Whether proactive or not, another skill set that project control professionals need to master is the ability to negotiate both personally as well as professionally. Refer to Module 2 “Managing People”.
Item 4 – How the various disputes resolution options how each one impacts or affect the roles and responsibilities of the project controller (GPCCAR Module 12.7)
Figure 4 – The Conduct Formalized Dispute Resolution Process Map (GPCCAR)
Settlement Conference may be either mandatory or voluntary. In both types of settlement conferences, the parties and their attorneys meet with a judge or a neutral person called a “settlement officer” to discuss possible settlement of their dispute. The judge or settlement officer does not make a decision in the case but assists the parties in evaluating the strengths and weaknesses of the case and in negotiating a settlement. Settlement conferences are appropriate in any case where settlement is an option. Mandatory settlement conferences are often held close to the date a case is set for trial. Click on the video to the left to see a demonstration of the settlement conference process.
Mediation – In mediation, an impartial person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties. Click the video on the left to see a demonstration of the mediation process.
Cases for Which Mediation May Be Appropriate: Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and nondestructive manner.
Cases for Which Mediation May Not Be Appropriate: Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, it may not be a good choice if the parties have a history of abuse or victimization.
Dispute Review Board (DRB) – The Australian Institute of Arbitrators and Mediators defines a Dispute Review Board to be:
- “Dispute Review Boards are made up of typically one or three experts who can assist in the management of conflicts and disputes in longer term and large projects.
- Relatively unused in Australia they can be a very useful adjunct to the project planner. Typically, the DRB is established shortly after execution of the contract documents, as performance of work on the project begins.
- A DRB has two basic responsibilities. The first is to become familiar with the project during construction. This process begins with the Board’s review of the plans and specifications, followed by periodic visits to the project. During these visits, in addition to viewing the work in progress, the DRB members meet with the owner’s and contractor’s staff at the job site to discuss the progress of the work, as well as potential issues on the horizon. These activities on the part of the DRB play a useful role in preventing disputes from arising because the parties are encouraged to clearly and objectively state their positions. They also provide the DRB with valuable background information should it need to hear a dispute.
- The DRB’s second major responsibility is conducting hearings on any disputes referred to it. At a hearing, which usually is held at the construction site, owner and contractor representatives who have first-hand knowledge of the issues, are given the opportunity to present facts, documents, and the rationale in support of their respective positions. Formal recording of the hearing and participation by lawyers are both relatively rare. Following the hearing the DRB issues a written recommendation or a decision, setting forth its analysis and opinion. If one or both parties elect to reject the recommendation, the issue proceeds to the next stage of dispute resolution under the terms of their agreement.
- DRBs were first used about 25 years ago in the USA. Since then they have been used on over 800 projects, primarily those involving public infrastructure construction. DRBs have been credited with a 99% success rate.”
Neutral Advisor – In neutral evaluation, each party gets a chance to present the case to a neutral person called an “evaluator.” The evaluator then gives an opinion on the strengths and weaknesses of each party’s evidence and arguments and about how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute. Although the evaluator’s opinion is not binding, the parties typically use it as a basis for trying to negotiate a resolution of the dispute. Click on the video to the left to see a demonstration of the neutral evaluation process.
Cases for Which Neutral Evaluation May Be Appropriate: Neutral evaluation may be most appropriate in cases in which there are technical issues that require special expertise to resolve or the only significant issue in the case is the amount of damages.
Cases for Which Neutral Evaluation May Not Be Appropriate: Neutral evaluation may not be appropriate when there are significant personal or emotional barriers to resolving the dispute.
Arbitration – In arbitration, a neutral person called an “arbitrator” hears arguments and evidence from each side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence are often relaxed. Arbitration may be either “binding” or “nonbinding”. Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator’s decision as final. Generally, there is no right to appeal an arbitrator’s decision. Nonbinding arbitration means that the parties are free to request a trial if they do not accept the arbitrator’s decision. Click on the video to the left to see a demonstration of the arbitration process.
Cases for Which Arbitration May Be Appropriate: Arbitration is best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-maker who has training or experience in the subject matter of the dispute.
Cases for Which Arbitration May Not Be Appropriate: If parties want to retain control over how their dispute is resolved, arbitration, particularly binding arbitration, is not appropriate. In binding arbitration, the parties generally cannot appeal the arbitrator’s award, even if it is not supported by the evidence or the law. Even in nonbinding arbitration, if a party requests a trial and does not receive a more favorable result at trial than in arbitration, there may be penalties.
Private Judge – Jim Zack in his 1998 paper “Resolution of Disputes — The Next Generation“ , described the “Rent-a-Judge” approach to be: “In some construction disputes, there are issues of law which must be decided in order to reach resolution of the dispute. Generally, issues of law ought to be decided by judges as they are skilled and experienced in deciding legal issues. But, litigation need not result. One form of ADR which allows input from judges but avoids the need for litigation is the Rent-A-Judge or Private Judge concept. The concept is to retain the services of a retired judge who is experienced with construction litigation. The private judge will typically conduct the process in a formal manner resembling the litigation process but without the need to await an available judge and courtroom. The private judge will generally render decisions which may be either advisory or determinative of the issue, depending upon the terms of the agreement between the parties. The advantages of this form of ADR follow. Retired judges practicing this type of ADR are most often skilled in managing complex construction cases and making decisions. The cost of this form of ADR is typically lower than many other forms and certainly a great deal less than litigation, generally being split between the two parties to the dispute. Finally, the speed with which a hearing can be established and held is considerably faster than litigation. The primary disadvantage cited by most is that the underlying process remains the same regardless of the fact that the trier of fact is a retired judge. That is, if a private judge is used in a trial, in arbitration, or in mediation, the process is still a trial, arbitration or mediation.”
Mini Trial – Zack goes on to explain in the same paper, the pros and cons of a Mini Trial: “A Mini-Trial is a voluntary, confidential and non-binding procedure. Generally, they involve summary presentations by attorneys and experts of the best case for each side, followed by questions and rebuttals. Mini-Trial agreements frequently limit these presentations to a half-day or a single day for each side. The Mini-Trial concept requires that top management representatives (with authority to settle) participate in the proceeding. The Mini-Trial is typically presided over by a jointly selected neutral who advises the parties, after the presentations are complete, concerning the apparent strengths and weaknesses of the cases. The neutral then assists the parties in negotiating a settlement at this point, somewhat like a mediator. The concept is to get top level management to sit through and listen carefully to both their own best case as well as that of the other side, and to reach a management decision that is based upon a realistic appraisal of both positions. The advantages of this system are the relatively low cost (compared to litigation or arbitration) and the fact that each party gets to present their entire case as if in court or in arbitration. Additionally, the neutral advises and assists top management of both parties in finding ways to resolve the dispute rather than rendering a decision. Non-binding results, privacy, party participation and control over the process are also considered advantages of this ADR form. The disadvantages of the Mini-Trial system arise if the top management personnel were personally involved in the issues in dispute thus making them unsuitable as panel members. Other disadvantages arise if the issues in dispute involve legal matters or matters of credibility as management personnel may not be trained to handle such issues. Finally, this system is not cost effective if the matter in dispute is not very costly.”
Summary Jury Trial – Zack also explains that there is a more formal version of the Mini Trial in which not only is the judge “rented” but also a jury of 6. This is known as a Summary Jury Trial and is similar to the Mini-Trial in many respects. “The concept is that the attorneys for both parties are each given one hour to summarize their case before a “rented” jury of six people. Introduction of evidence is obviously limited due to the time limitation and witnesses and experts are not allowed to participate in the proceeding. The neutral advisor may be either a sitting judge from the local court or may be a Rent-A-Judge. After the case summaries have been presented, the judge provides a short explanation of the law concerning the issues in dispute and the jury retires to the jury room. The jury tries to reach a consensus opinion on the case. Failing that, individual juror views are presented anonymously. Generally, Summary Jury Trial verdicts are advisory and not binding (but may be made so by agreement). The concept is for the parties to gain an understanding of how a potential jury will react to the case prior to going to trial. The advantages of the system are that the cost is relatively low compared to litigation and the time needed to present the case is minimal. Another significant advantage is that when each of the parties has to summarize their case into a precise one hour presentation, both sides are forced to focus on real issues and forego all legal theatrics. The single most commonly cited disadvantage is that the jury has to form an opinion based solely on a one hour presentation from each side, a timeframe that is short in the extreme, given the complexity of the typical construction case.”
Special Master/Settlement Judge – Lastly, Zack explains the use of Special Masters or Settlement Judges: “The Special Master form of ADR (sometimes referred to as a Settlement Judge) has been called “ADR’s last clear chance before trial”. The concept of a Special Master is for the court to appoint someone with authority and time to control the discovery process (such as deciding objections to deposition questions, document disputes and claims of privilege), to rule on all pretrial matters in lieu of a judge, and to facilitate settlement discussions. Special Masters may be requested by either or both parties or may be imposed unilaterally by a court. Payment is typically split between the disputants. By putting the litigation into a rational framework, the Special Master is often able to help the parties reach a settlement prior to the trial. The advantage of the Special Master system is that it can save a great deal of cost during the pretrial period with respect to needless discovery battles and help facilitate settlement discussions. The perceived disadvantages of this system are that a Court may grant too much authority to the Special Master (for example Summary Judgement Motions). Some also fear the possibility of private discussions between the Special Master and the trial judge concerning the details of settlement negotiations or positions asserted by the parties.”
Selection of Preferred Alternative
There are no preferred alternatives in this case, all 4 items listed above are needed to enhance current knowledgebase ahead of the GPC ELPC Examination.
Monitoring Post Evaluation Performance
Post evaluation monitoring will be to see if what has been provided above has been fully understood and useful to assist successful passing of the examination, and then used on future projects to demonstrate the effectiveness and value of what a Project Control Practitioner provides to the project team, and decision-making process.