The following questions were answered by Steering Committee member, Lee Sporle during Construction Clinic 9, recorded on 19 May 2020. The responses have been summarized from the original. The entire webinar may be viewed on-demand on YouTube.

Question 1

Question: I was recently invited to bid for an expert appointment along with a delay analyst. The expert report will eventually be used in arbitration at a later date. The background is as follows: The Engineer approved the baseline programme, but it wasn’t linked, nor did it show a critical path. The Engineer had approved an extension of time based on an impacted as-planned delay analysis.

During private discussions, the expert delay analyst stated that we should protect the Engineer and not alienate him and that we should look to be reasonable and find a solution to support the EoT and support what we believe to be a reasonable EoT for the Contractor.

With an expert hat on what is the panel’s thoughts about this scenario, particularly point three?

Answer: I have worked on arbitration where the contractor did not submit a critical path programme. It wasn’t linked and it was literally just a static bar chart on a piece of paper. Yet, it got to arbitration. So it does happen.

It obviously makes the claimant’s job a lot harder – trying to prove an extension of time; trying to prove that he is entitled to anything. It’s equally difficult on the respondents because you’re there to provide the arbitration an answer. You’ve got to go through all the facts and all the records that are available and see if you can actually look at what happened at a particular point in time.

Point two, which was that the Engineer actually gave an extension of time using an impacted as-planned. The question doesn’t state which programme he used, because the baseline that’s approved has no logic in it.

The Engineer could well have approved and given an extension of time using an impacted as-planned, if he believed that the initial phase of the project was delayed and that no works could start, therefore the entire period would be shifted. So, that would be an impacted as-planned, which would be reasonable, because no works have been carried out.

There are no progress updates; it’s the initial delay. However, if the impacted as-planned has been awarded throughout the project, say, six months, eight months into the contract and lots of progress has happened, then it’s pretty unlikely that that extension of time would be correct.

Point three, and I’ll just repeat that one: during private discussion, the expert, the analyst stated that we should protect the Engineer and not alienate him and that we should look to be reasonable and find a solution to support the EoT that we believe to be a reasonable for the Contractor.

The expert’s role is to assist the proceedings and the tribunal, not to win the case. It’s to provide independent review, evidence, expert advice to the tribunal for them to decide what they’re going to award. You can argue persuasively, but you provide your case based on the facts you’ve been given. It’s not your role to avoid alienating anyone. Your role is to provide a report on the facts and tell the story.

If I was in that situation, I would probably decline the case, or advise my instructing solicitor of what was being said, because it’s not right. You’re there to provide advice to the tribunal or whatever situation you’re in.

Question 2

Question: I know disruption claims are more difficult to prove than other types of claims, and the two methods generally used are the measured mile analysis and the earned value analysis. What is the speaker’s view on this subject?

Answer: It is a difficult one. Disruption comes from productivity. Productivity comes from your planned tasks; how long you’re going to take. That is the million-dollar question, especially say for in the Middle East when you import a lot of labour from all over the world.

You’ve got to adjust your production rates based on the conditions, the experience of the labour, etc. and then put that into play to produce your programme. Nine times out of ten, that never happens. A common production rate that was used previously is used again without considering if it worked.
The next difficult part is actually keeping records. I’ve rarely seen detailed records kept on the projects I’ve worked on. Detailed records in the sense of, “We planned to have four men on this, we had six men on it,” or, “We had three men on it in the first day and we had five men on the rest of the period.”

I’ve never seen those records per task. I’ve seen numbers of men on a site, men on the floor; I’ve seen a number of, for example, steel fixers. Not, “I had four steel fixers on that slab.” That kind of record is very scarce on a project. And it would help you in disruption.

You mention earned value and measured mile. Earned value is becoming more and more popular, but what I have yet to see with earned value is the actuals: “We know what the budget cost was, and we know what the budget value was, and what we should have earned by a set period. And we know what we actually earned after a period.” They may not be the same periods, and one may say, “10 days’ work will earn X amount. It took us 20 days to earn that money.”

I’ve not seen many value analyses that actually break down the cost to do that work and/ or the cost of the labour on a particular task. Again, that comes down to the need for those records.

The measured mile approach is quite a common phrase. Pretty much everyone in the construction industry has heard of the measured mile now. Probably not many people have actually carried out and executed the measurement. They’ll say, “We planned to do it in 10 days; it took us 20 days.”

You need to show the proof that you were capable of doing it in ten days, and then why it took you 20. Did you use the same number of men when you took 20 days, or not? It is a lot easier to convince people of the measured mile approach, because they understand what you’re saying, but the records to support it are extremely difficult to get a hold of.

For example, if a five-day activity takes us 10 days, and you looked at our as-planned as-built programme: five days planned, took 10 days; that’s a five-day delay. Perhaps, if we had the actual records, it would have shown that we did the work in four days: we started the first day; we demobilized the men because of a critical activity we had to get done; we put the men back on there after six days and finished the work off in three. So, it took us four out of a planned five, but we took overall 10 days to do it.

Is that disruption? We’ve disrupted the work, but we’re not claiming a disruption. We did a better productivity. Or, it could have taken you eight days to do that five days’ work in a ten-day period because you were stopped for two days. Without the records, there are too many different combinations of what actually happened. So, for any disruption, you need those records.

And I strongly believe on most projects there’s a vast amount of money lost through disruption because it’s not measured. If a delay on a project is not on the critical path, people tend to ignore it. But there’s money in it, and the SCL protocol is delay and disruption. There’s a huge cost there. It means you’ve got to measure and record exactly what you’re doing.

The questions covered in this blog were answered by Lee Sporle

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