Audience Focus: Advanced
Application Type: Application
Time/Room: SUN 1:30-2:30/Wilson C
Abstract: When Superstorm Sandy approached the New Jersey Shore in late October 2012, there was an expectation by weather professionals and government agencies of a storm of historic proportions. However, all the warnings in the world could not have prepared New Jersey, New York, and other areas impacted by the storm for the devastation and tragedy that Sandy brought. Extensive news coverage of Sandy has described the devastation in detail: more than 650,000 housing units damaged or destroyed, primarily as a result of the storm surge, along with numerous business locations, many of which will never recover.
With Sandy striking as "just" a superstorm and not a hurricane, determining the damage mechanism, particularly wind versus storm surge, is a critical issue in the insurance claims process for all property owners. Many policies cover damage caused by wind but not damage caused by storm surge, which is often considered flood, and therefore excluded or subject to extremely high deductibles and aggregated sublimits. Therefore, there has been considerable conflict between property owners and insurers as to the determination of the specific cause of Superstorm Sandy damage. Typically, when this conflict arises, a forensic construction expert or investigator is brought in to help resolve the issue. However, beyond the analyses of all the available data, there are many other challenges facing the forensic construction expert or investigator. In this case, such challenges include seeing "beyond the headlines" of Superstorm Sandy, while gathering all available information to formulate substantiated conclusions regarding the cause and origin of property damage.
(CDR-1213) An Introduction to Dispute Boards and All Its Forms
Primary Author: Mr James Charles Perry PS Consulting
Audience Focus: Basic
Application Type: Application
Time/Room: SUN 2:45-3:45/Wilson C
Abstract: This paper reviews the workings of an alternative dispute resolution mechanism broadly known as a Dispute Board. Dispute Boards are a form of adjudication, or conciliation, featuring a panel of experts named at the outset of the project. The Board visits the job site regularly during construction and keeps current on the project’s progress, even when there are no formal disputes.
This paper covers the historical beginnings of Boards in the Americas, through their adoption by FIDIC (International Federation of Consulting Engineers) in their standard forms of Contract in 1999, and later by many multilateral development banks and international finance institutions, notably through the promulgation of the FIDIC MDB version of its Construction Contract issued first in 2005, and also through the publication and promulgation of the ICC Dispute Board Rules in 2004.
The paper also describes the various types of Boards found in the FIDIC suite of contracts (standing and ad hoc) and rules for the use of the various Boards under the ICC Rules (DRB, DAB and CDB). The mechanics of operation are covered, and the advantages of the systems, especially the forms which allow the Board to play an advisory role. (CDR-1230) A Comparison of EVM to Measured Mile in Calculating Inefficiency
Primary Author: Dr Jae-Seob Lee Dongguk University
Audience Focus: Intermediate
Application Type: Research
Time/Room: WED 9:45-10:45/Wilson C
Abstract: Delays and disruptions are the major factors to the cost overruns that affect many construction projects. Even though there are various methods proposed in previous researches that are considered applicable for analyzing the schedule impact and damages resulting from delays and disruptions, they do not consider the realistic production rates of activities over time.
This research proposes a modified method that can reasonably calculate the damages due to delays and disruptions considering the feasible rates of production of activities over time. The proposed method includes the 'learning curve' and the 'earned value analysis' as research methodologies. EVM (Earned Value Management) will be utilized to demonstrate and calculate the loss of productivity due to delays or disruptions on construction activities. (CDR-1240) Trends in International Construction Arbitration
Primary Author: Mr Peter V. Badala Navigant Consulting, Inc.
Co-author(s): Mr James G Zack Jr CFCC Navigant Consulting, Inc.
Audience Focus: Advanced
Application Type: Application
Time/Room: MON 10:00-11:00/Wilson C
Abstract: International arbitration is a transnational dispute typically involving disputes between parties from different nations often performing work in yet another nation. A UK contractor constructing a ore processing facility in a sub-Saharan African nation on behalf of a Canadian minerals company, files a claim for UK£1.45 million and seeks arbitration when the project owner refuses to settle is a an example of an international arbitration. As the world’s economy has become more globalized, more corporations are working internationally. Over the past two to three decades disputes on construction projects have become larger, more complicated and more common. A literature survey indicates that arbitration is the preferred dispute resolution mechanism for international corporations rather than transnational litigation. As the number of arbitration case filings has increased so has the number of arbitral institutions (which now number at least 28) and the seats of arbitration. Perhaps in reaction to growing criticism of the process, there has been and continues to be other changes concerning international arbitration. (CDR-1246) Avoiding the Pitfalls in Implementing the Measured Mile Method
Primary Author: Dr Tong Zhao PE PSP Delta Consulting Group, Inc
Co-author(s): Mr J. Mark Dungan Delta Consulting Group, Inc
Audience Focus: Intermediate
Application Type: Application
Time/Room: MON 11:15-12:15/Wilson C
Abstract: The measured mile method, a widely accepted approach involved in lost productivity claims, compares the productivities of identical or similar work between non-impacted or least impacted and impacted segments of a project. The procedures to implement a measured mile study usually include data processing, productivity measurement, measured mile identification, cause and effect analysis, and loss of productivity calculation. Despite the popularity of the measured mile method, incorrect implementation can cause failures in proving and quantifying loss of efficiencies for claims that resulted from the impacts legitimately assignable to other parties. This article discusses some common errors and pitfalls in implementing the measured mile method in loss of efficiency claims, which should be avoided. A case study, demonstrating how to turn a loss of efficiency claim from implausible and counterintuitive to well supported with causation by correcting a few subtle errors in implementing the measured mile method, is also presented. (CDR-1254) EOT Claims: Successful Navigation through a Legal and Technical Minefield Primary Author: Dr Anamaria I Popescu PE PSP Hill International
Co-author(s): Mr John C. Jerz Hill International
Audience Focus: Intermediate
Application Type: Application
Time/Room: TUE 8:00-9:00/Wilson C
Abstract: Extensions of time claims (EOTs) continue to be a practical and legal minefield for a principal and contractor alike. For a contractor, an extension of time claim can be the most expedient and successful method of recovering delay costs. However, the question of entitlement to an EOT should always be examined from both a legal perspective (by reference to the contract) and also a practical perspective (by reference to the contemporaneous schedules and project records). This paper focuses on the methodology a contractor should employ to prepare a compelling EOT claim. First, the triggers giving rise to an EOT claim will be explored along with contractual entitlement. Next, the key ingredients necessary to create an effective EOT claim are described. Finally, discussion involving the correct documentation and presentation of an EOT claim is explained along with the timing of the submission. (CDR-1256) Challenges of the Measured Mile Concept for Productivity Loss Claims
Primary Author: Mr Philip D Barnard PE CCE Interface Consulting International, Inc.
Audience Focus: Intermediate
Application Type: Application
Time/Room: MON 2:00-3:00/Wilson C
Abstract: Contractors face several challenges when developing claims for productivity loss due to owner/architect/engineer or third-party interference. These include the burden of linking the interference to the productivity loss and establishing the reasonableness of estimated increased time and/or costs. AACE International describes various methodologies in its Recommended Practice No. 25R-03 for estimating lost productivity, with the most favorable being the Measured Mile. This paper discusses this methodology in which labor performance is compared between two time periods – an unimpacted period called the “Measured Mile” and an impacted period. This paper discusses the challenges in comparing Measured Mile performance criteria, including work tasks, productivity levels, worker skill levels, work scopes, and work environment. By following the guidelines outlined in this paper, contractors and claim preparers can ensure they are utilizing the best available facts and records to package their claim in an understandable and believable format to ultimately be successful in their recovery of damages.
Audience Focus: Intermediate
Application Type: Application
Time/Room: MON 3:45-4:45/Wilson C
Abstract: With increasing time and cost pressure from owners, it is likely that risk-adjusted schedules will expand beyond their current uses and become more common in buildings and infrastructure construction. Risk-adjusted CPM schedules use computer modeling to analyze the likely fluctuation of activity durations resulting from a range of uncertainties and risks, and then analyze the effects of the variations on the schedules float as different chains of activities are given different durations and the amount of float changes. The result is a schedule that has a series of potential critical paths with varying degrees of likelihood, rather than a single Critical Path and sub-critical paths. Forensic schedule analysis, however, is predicated on identifying the “single” contemporaneous critical path, often defined as the path with zero float. So what happens when the CPM schedule series has been risk-adjusted so that float is variable and more activities paths are critical? This paper will discuss a theoretical model for performing a delay analysis on a project where the initial baseline and all updates were adjusted for risk. (CDR-1278) Disruption Analysis by CPM Out-of-Sequence Methodology
Primary Author: Dr Fredric L. Plotnick PE Engineering & Property Management Consultants Inc
Audience Focus: Advanced
Application Type: Application
Time/Room: WED 11:00:12:00/Wilson C
Abstract: Delay to an activity may not lead to delay of the project. However, such delay may lead to a disruption to the contractor’s anticipated means and methods and be the basis for a claim. Delays imposed upon many activities may also lead to a resource driven delay to the project. This presentation will address a means to determine the costs of disruption at the activity level and to analyze the cumulative impact to cost and schedule at the project level. This analysis may then be compared to the more traditional methods of measurement of impact of disruption, such as the measured mile approach to determine loss of productivity, and other “big picture” analyses. (CDR-1353) Responsibility of Nonworking Days in Analyzing Delay Claims
Primary Author: Dr Khalid S Al-Gahtani King Saud University
Co-author(s): Mr Ibrahim A. Al-Sulaihu King Saud University; Dr Abdullah Alsehaimi Ministry of Health
Audience Focus: Intermediate
Application Type: Research
Time/Room: SUN 4:30-5:30/Wilson C
Abstract: Calendar is one of the essential issues that add complexity in delay claims analysis. In general, non-working days (NWDs) can be considered to be a part of the baseline schedule during a project’s duration because the schedule is part of the contract documents. However, after the project passes the completion date, the NWDs are considered to be a delay. One of the dilemmas associated with delay analysis in the calendar schedule is the method of assigning the responsibility of delay that is associated with NWDs after the project completion date. In this situation, the current delay analysis techniques often lead to inaccurate results as demonstrated in this paper. To bridge this gap, this paper studies first the effect of NWDs in delay analysis. Accordingly, the paper introduces formulas that help in allocating the delay responsibility associated with NWDs among the project parties in more accurate manner. (CDR-1356) Windows Analysis versus Half-Step Analysis Progress Impact Quantification Primary Author: Ms Greta A Martin PE PSP Alta Cascade
Audience Focus: Advanced
Application Type: Application
Time/Room: TUE 2:00-3:00/Wilson C
Abstract: Although categorized separately, AACE’s Recommended Practice 29R-03 “Forensic Schedule Analysis,” indicates that Windows Analysis (MIP 3.3) and Half-Step Analysis (MIP 3.4) are nearly identical. As part of the same family of analyses, both methods use contemporaneously generated schedules, evaluate impact to the schedule from one update defined time period to the next, and take into consideration changes to the critical path via both progress and schedule revision. However, the key divergence between the two approaches is the creation of mid-period schedules in the Half-Step Analysis. As a result of this added step, and despite the methods’ similarities, these analyses can yield different results regarding delay quantification of in-period progress versus schedule revisions. Using a series of case studies, this paper explores the similarities and differences in the application of these methodologies, and will explain and quantify potential disparities in the end results. (CDR-1382) Schedule Activity Density Analysis
Primary Author: Mr Jeffery L. Ottesen PE CFCC PSP Alta Cascade Inc
Co-author(s): Mr Kenji P Hoshino CFCC PSP Project Controls & Forensics LLC
Audience Focus: Advanced
Application Type: Application
Time/Room: TUE 9:45-10:45/Wilson C
Abstract: Given inherent difficulties in construction, optimizing labor efficiencies is paramount, while failure bleeds profit margin and can cause critical delay. Correlation between productivity loss and delay is not always apparent, thus making proof of cause and effect for productivity loss an arduous task. Such proofs typically rely upon contemporaneous records related to schedule and resources. Resource loading and leveling a CPM schedule has been around for decades, but not enough schedules fully utilize such capabilities. Common to all schedules, however, are planned work activities and logic (whether specific or implied) that define intended work sequence. Whether resource loaded or not, these activities represent to some degree a coordinated management effort of time and resources. This paper presents a means to quantify and analyze schedule activity densities pursuant to identifying productivity loss in real-time, or in retrospect when supporting a claim. (CDR-1402) Mis-Using the Measured Mile Concept to Make a Claim
Primary Author: Mr Robert D. Kelly Jr CFCC PSP Alpha Corporation
Audience Focus: Intermediate
Application Type: Application
Time/Room: WED 8:00-9:00/Wilson C
Abstract: In construction, the “Measured Mile” is a frequently-cited damage calculation methodology associated with claims for loss of labor productivity. There is no single implementation for the Measured Mile - it is more concept than prescription. Proper Measured Mile claims are compelling. However, recent trends in Measured Mile claims represent a transformation and weakening of the otherwise reliable and repetitiously-lauded methodology. The purpose of this paper is to identify, through actual and recent examples, trends in claims which represent a diminishing transformation of the Measured Mile methodology. Given the expanding spectrum of Measured Mile claims, there is a need for the industry to structure nomenclature, protocols, and a hierarchy of implementation such that Measured Mile claims can be properly associated with new and varying accolades (or criticisms) of the different ways to perform the calculation. (CDR-1404) Adapting Alternative Dispute Resolution to Meet the Demands of Modern Projects
Primary Author: Mr Christopher M. Anzidei Law Offices of Christopher M. Anzidei, PLLC
Co-author(s): Mr Christopher J Brasco Watt Tieder Hoffar & Fitzgerald, LLP; Mr Adam M Tuckman Watt, Tieder, Hoffar & Fitzgerald, LLP; Mr Blake V. Peck PE MBP; Mr Brian M. Perlberg The Associated General Contractors of America
Audience Focus: Advanced
Application Type: Research
Time/Room: TUE 11:00-12:00/Wilson C
Abstract: Complexity and uncertainty have become hallmarks of modern construction projects. Over the past two decades, our industry has experienced rapid changes that have fundamentally transformed the industry. Advances in technology and innovation have changed the way projects are planned, constructed, and monitored. Speed to the market has become a premium. Shrinking budgets and alternative delivery methods have presented unique challenges and caused a realignment of project partners, with a marked shift away from the traditional design-bid-build model. And we are still suffering from a global recession, the worst in 80 years.
The rapid rate of change and new alignments of project participants have placed a premium on efficient, timely dispute resolution. Our paper will examine commonly-used ADR (Alternative Dispute Resolution) methods (e.g., mediation, arbitration, DRBs, project neutrals) and discuss how these mechanisms can be adapted to meet the needs of modern projects. Gone are the days when parties can simply reserve rights and fight later. Rather, the authors will suggest ways in which participants can incorporate efficient, effective dispute resolution techniques into their projects. (CDR-1436) Generating Claims through Contract Provisions and Management Practices
Primary Author: Mr Mark F Nagata PSP Trauner Consulting Services, Inc.
Co-author(s): Mr Frank DiCianni Trauner Consulting Services, Inc.
Audience Focus: Basic
Application Type: Application
Time/Room: TUE 3:45-4:45/Wilson C
Abstract: Nobody is pro claims. We are all claims avoiders. We all partner, whether in name or just deed. Yet claims continue to be filed and we continue to be mired in litigation or tamer, but still costly, mediation and arbitration. The purpose of this paper is to explore why our stated objective of claims avoidance does not always fit with reality. Perhaps some claims are inevitable, but the focus of this paper will be on contract language and construction management practices that function as “claims generation machines.” Their operation is not obvious, but too often effective.
Specifically, these machines are:
Managers who do not “believe their indicators” and don’t act to resolve delay-related issues timely.
Management practices that push off the resolution of time extension request to the end of the project.
The willingness or need for individuals at different levels in an organization who are willing to pay for items that the contract itself forbids.
Contract provisions that resolve disagreement over the pricing of additional work differently.
Contract provisions that fail to consider all of the potential costs of a change.
Primary Author: Dr Anamaria I Popescu PE PSP Hill International
