In this webinar, we were joined by Chris Beirise of HKA Global, LLC (USA) and Claire Packman KC of 4 Pump Court (UK). Together, they will explore the top tips for infrastructure projects.
Chris Beirise of HKA Global, LLC (USA)
Chris is a delay and quantum expert with over 32 years of experience in the construction industry. Chris has testified in international arbitrations, before judges and juries as well as presented in numerous mediations, settlement negotiations and alternative dispute resolution proceedings.
Chris has worked on projects in Asia, Europe, the Middle East, North and South America. He has worked on numerous types of projects in the construction industry, including but not limited to, airports, bridges, highways, tunnels, power plants, stadiums, and refineries.
Chris is highly proficient in all methods of delay and quantum analysis including productivity, acceleration and disruption.
Claire Packman KC of 4 Pump Court (UK)
Claire Packman KC is an experienced commercial barrister with over 25 years of experience. She has an exceptional reputation in the fields of construction, professional negligence and international arbitration. Claire's practice is split between domestic work and large scale international arbitration, particularly based in the Middle Eastern region. As a fluent Spanish speaker, she has a keen interest in Spanish and Latin American arbitration.
She is recommended in Legal 500 and Chambers & Partners for construction disputes, professional negligence work and international arbitration (construction and engineering). Claire was formerly a Society of Construction Law council member. She is a contributing author of the Architect's Handbook, LexisNexis online Adjudication KnowHow and is a former editor of the Adjudication Society newsletter.
Transcript
00:00:00 Bill Introduction
Someone introduced to speakers and then we'll crack on so in reverse order and closer we got Chris Parise so this is my the huge strings today because it's now presumably about four o'clock 4:00 AM I should say with Chris and the only other person who's up in his house is his cat so who may make a guest appearance and will no doubt ask some very telling questions so Chris is aparna HK global is a delay and damages and content expert with over 30 years of experience in construction and engineering Chris's testified in courts arbitrations international arbitrations is delivered sworn depositions and presented in mediations and in ADR is highly proficient in methods of deley analysis as well as analysis of projects cost growth issues including productivity acceleration and disruption and he's been engaged as an expert on schedule and damages matters in excess of 90 $1,000,000 Chris is also very smart cookie kisses holds a Bachelor of Science and civil engineering and is a member of the international Bar Association is a member of the American Bar Association is an associate of the advancement of cost engineers and is a member of the project management institute I wait people have these millions of memberships annihilates me fillon credibly inferior I'm here but I don't know how am you crystal Claire time to do all these things very very impressive he's consulted for Fortune 500 companies subcontractors design professionals as well as governments and state entities he's to classes for clients and on public forums in scheduling project documentation and cost tracking tracking not only doing nothing with trafficking at all I asked Chris always ask people for some sort of interesting facts because I think it's useful to realise that these aren't just exhausted jobs who was speaking to you today these are just normal human beings and Chris has confessed that he has interest in films and TV and he always has a competitive part of the for the Oscars with his wife and on long flight is something I didn't know about Chris likes to play Candy Crush is that Neil Christie as totally real and he's reached respectable level of 10,960 now that just makes me feel like either some old fart or or to think thank God I've never actually played Candy Crush gather watch people play it and it looks a difficult and be like the sort of thing that just sucks you in and you will never released so anyway I I look forward to sitting on a plane and seeing your skill and then we also have Claire packman Casey obviously was can you see now Casey very important full pump court when I think of the most prestigious construction sets clear practises internationally and domestically as she's highly commended in legal 500 chambers and partners and also chambers globally the construction dispute she is regularly instructed in high value technology construction court this is property courts litigation arbitration again internationally and locally and in adjudications adjudication enforcement and disputes relating to payment his experiencing all types of contract but in particular JC T NEC is fidic ICE I can a professional appointments you don't see I see very much these days obvious reasons space she was formerly an elected member of the Society of construction or council and is a contributing editor to the architects handbook and LexisNexis online adjudication now which is so so the go to place for professionals when we actually need to have answers to things and she's also a former to of the adjudication society newsletter again we ask Claire for some interesting background information and I have to say Claire the yours in three years possibly is one of my favourites I read this like just thought wow this is this is so good I mean is it you have raised the bar in the interesting information so outside of law Claire's lived a life of danger and glamour as a student she lived in rural Colombia at amount is just so many questions I want to ask about that I think we haven't got off she narrowly avoided being kidnapped when guerrillas tried to take her hometown I mean again so many questions aren't off just the concept of coming in and taking over a town frightening but fascinating and when she moved to London a few years later she lived on a small cobbled St in Camden Town for those of you liveable lots of our streets are cobbled it doesn't mean to say we're that far behind but it's meant to be quite again flip to coupled street with the actor Damian Lewis on one side and Amy Winehouse on the other I mean why did you leave and the Papa ratzi now Claire says at a distance but I'm not quite sure whether you're being modest or otherwise so she used to be mistaken for Amy Winehouse so that is a real claim to fame I'm not sure I is your singing voice very good car not good at hers that's for sure why they it perhaps you to some smoked enough and drunk enough together like last business anyway those are our amazing speakers today cloud strange go first and she's going to be looking at top tips for infrastructure projects and she's going to be looking at risks and liabilities and matrix that you can use as I say the chat function is enabled so please put in questions or comments or thoughts as we go through I will pick them up at the end with Claire and then again with Chris and then at the very end will will open all the cameras and microphone so that you can ask your questions directly it's very important to me that the whole all of this is about sharing information and collaborating so if you got any thoughts insights and do share them and over to your class and train much
07:00 Claire
Good morning everyone and thank you to bill in Boston legal for inviting me it's very nice to be here so I just been having a bit of a think about the sort of cases that I've done related to infrastructure projects and what sort of themes I could pull out of them which might be interesting or have some interesting insights for for u arising from that
and obviously the starting point with a large infrastructure project is just the sheer number of people that all have to come together within the project in order to build whatever it may be the road the airport the bridge
and so it's I wanted to look really at that how to make sure or all the things really to think about to make sure that people are all doing the right thing and know what they're supposed to be doing and what other people are supposed to be doing
because I'm a trial lawyer I do a lot of construction engineering disputes as a barrister and obviously you've got two sort of categories of things that go wrong or project either people do things badly, people make mistakes that's one category but the other category and the one I suppose I'm gonna be talking about more today is that people misunderstand what they're supposed to be doing or what somebody else is supposed to be doing and it's that you know anyone can do something wrong there's not so much you can do to stop that happening well off you can have quality control or whatever but the not understanding who is doing what is something that can be improved and can be pre-empted and it's that sort of pre-emption that I want to look at today to make sure that everybody in your project is using the same script
so the two particular things I want to focus on today are firstly the responsibility matrix that we see very often on projects relatively simple document entirely intended to show people clearly who is doing what but the number of times that I end up cross examining on responsibility matrixes suggests to me that they're not being used properly and that they're actually potentially dangerous and misleading
so I want to look at that a little bit in order to encourage you when you're using when you're putting together a contract when you using a response photometrics or when you're trying to work out who's doing what under a project to treat them with some portion
and the second thing I wanted to look at today was the question of a multi discipline design team particularly when they are all appointed where one professional takes on the contracting responsibility for the entire design team and the sort of issues that arise in that cause I've had a couple of big infrastructure projects where that has been the model and I think one sees it increasingly and it has thrown up some specific problems which need in my view to be thought through more at the project inception stage then they generally are
moving on that to the starting with the responsibility matrix I'm sure many of you have seen these documents they are often pretty simple maybe just one page of a four typically or a few with a column per entity that's responsible for things and a row for a very high level task but that is being been allocated between the parties and it's not intended to be something like a programme which obviously breaks down the tasks until the the composite parts it's a useful project management tool and you know I'm there taught on project management courses project managers are encouraged to use them and they I'm sure are very helpful in a lot of ways
but my concern is when they are bound into a contract so they are included with the pack of documents that get chucked in at the end off and perhaps quite late and they are not subjected to the same level of review and analysis by the legal team that much of the rest of the contract has been and so the difficulty I've set out here is that they are often produced by project managers and not properly considered by the lawyers
a simple tool meets a complex reality and the end is inconsistency and potential litigation blowing from that
because if one part of the contract says you do have to do something and another part of the contract says you don't then you're set up for a complicated dispute expensive involvement of lawyers because you're going to have to somehow unpick that to determine who is responsible for what and
secondly the tool itself in its simplicity conveys to the other members of the team what you're doing and therefore perhaps limits or affects what they think they're doing and so it can lead to assumptions as to who is responsible for what which aren't necessarily borne out by the I see the detailed contractual terms
so it is if you like a bit of a blunt instrument it doesn't mean it doesn't have a good role but there's going to be a difficulty if for example it's a one page page of a four it's going to be difficult for that in any meaningful way to reflect the complexities of what each of the same say for example were talking about a design team each of what the different professionals are going to be doing or the project managers construction managers whoever else may be incorporated within it and somehow there's got to be an attempt by someone on the legal team if it's going to be bound into the contract to make sure that it does reflect the actual responsibilities Shane elsewhere in the contract and I mean you often do see that they have a sentence somewhere there which tells you that that you know you need to read all the terms of the contract but where there is a major inconsistency or where there I've got one at the moment where there's an additional column which has notes in it and the note sets out in quite a bit of detail what a particular consultant is supposed to be doing in this case the case I'm thinking of it's a cladding case relating to a hotel and the overlap between the architect and the specialist cladding expert brought in to design the cladding system has been finessed if you like by a column in which the the specialist role is explained the difficulty is when you look back at the rest of the contract it doesn't necessarily say the same thing and there are inconsistencies about who is doing what and that of course when things go wrong and there turns out to be an issue with the cladding which in cases in the UK is all too popular at the moment then you have a difficult dispute rather than a straight forward dispute because there's an argument as to who was actually responsible for the selection of the materials that went into into the property
part of the difficulty when putting together responsibility matrix or including it in the contract. The others contracts in fact it seems from my experience to be often the case that one consultant won't have seen I mean you might not expect him to see the financial parts there who's being paid what but they won't have seen the parts of the contract which explained what that other professional is doing so the architect might not have seen the engineers appointment even though they may be responsible they may be the lead consultant even though they may be responsible for coordination and this in itself causes a a problem because if they don't know what the detailed nitty gritty of the role that's been undertaken then they can't properly manage that contract and they can't properly identify the potential pitfalls the difficult interfaces the areas where where proactive coordination is going to be required and one knows when a consultant is putting forward the proposal for the work there might be allsorts of exclusions or caveats within their proposal that proposal may be bound into their appointment and the picture is unlikely to be as straight forward as a tick in a box on a design responsibility matrix is likely to to present.
so pre contract for the parties themselves it seems to me there's a real imperative on them to make sure that if there's a design responsibility matrix that it does in fact show accurately what they understand their contractual responsibilities to do and that they have appropriately caveat it if it's going to be a contract document with footnotes or just cross references to the contract or something else because otherwise in itself it can't deal with the complex arrangements in the rest of the contract and then it seems to me also that the pre contract stage some thought needs to go into where the rubs are going to be where are they going to be difficult interfaces where there's been a specialist brought in specialist contractor has anybody actually thought about where the design is going to stop or has everybody just assumed that it will be obvious.
I've had a case about a Middle Eastern shopping centre with a glass roof and a big problem because the architect in theory had full design responsibility but a delegated the glazing to a specialist contractor employed directly by the client but nobody had really grasped where one's design responsibility was going to stop it seemed to be assumed in the contract documents that was an obvious question and that it didn't need to be answered Huge expensive litigation because obviously the difficulty turned out to be exactly in that interface and nobody is clear as to whose responsibility it is. so each party must try to pre empt where those sorts of problems are going to be and try to be clear that it is spelled out where the line is going to be drawn and where it's not and that then if there is a design responsibility matrix to make sure that it is followed through there
during the contract the question that arises: do the parties know where the interfaces are or are people just assuming that they know? so again with this question that I asked before about whether the other parties have seen the other contract I've been often surprised when cross examining somebody who in theory has coordination responsibility and is being sued in part for a failure to coordinate the works, that you asked the question that you assume you know you sure it's going to be a yes, you know had you seen the other consultants contract and they say no. I mean it's staggering I don't understand how you could properly do a job of coordinating and managing a design team if you didn't have site of the contractual documents but I think people just assume that they know they know what you know and I can sympathise that that that to some extent we all know what an architect tends to do we all know what an engineer does anemone consultant but obviously the rub is in the particular details that particular exclusions and the points of which it's not so often
at now the key answer to this is for somebody to take real leadership with the issue and to document the interfaces in a in a careful way now I know I've often seen interface meeting minutes and many projects will have structures to discuss exactly these sorts of issues but I wonder how much they are reactive in other words consultants come and say oh we've got a problem here where are where there's an interface and then everyone meets to discuss it or how much they are proactive when somebody in advance really having thought through where they're going to be what sort of issues are going to arise and then look at it not just as the terms of engineering practicality of how a particular problem is going to be fixed but also a question of under our contracts are we clear who who's responsible for it and in particular are we clear that someone is responsible for it because again many disputes arise where there's actually a bit of a gap between the contracts and nobody has done it and nobody realises
I had a case not so long ago about building a new build church and there was a gap or disagreement as to whether or not there was a gap between the structural engineer and the steelwork fabricator, with the result that one important connexion at the top of the church wasn't properly designed everyone assumed that somebody else had done the necessary checks on it the entire church collapsed two days before practical completion quite extraordinary amazing now was killed but exactly that because there was a gap that nobody had identified so obviously these things are problems that come up, I would suggest there problems that come up particularly with specialist subcontractors because they cut across the ordinary divisional responsibilities they between architect and engineer and just the word specialist I think gives people that comfort to assume that they have safely delegated a whole load of responsibility onto that subconsultant without necessarily really checking to see what the individual contracts require
and so it really involves understanding the extent to which each party is responsible and also the extent to which each party is responsible for checking the work of others again often in in disputes I end up drafting things to do with who had you know did they have supervision responsibilities did they have the responsibility to cheque that they have spoken to review the design and these things are often very finely finessed depending on the exact wording of the contract and I'm not sure that in a lot of projects people have really given that much thought to what extent if there's an architect with some checking responsibility and there's also a construction manager with some checking responsibility have they really thought whose checking for what how often have they really are they assuming that one person is checking more often than they have you often find somebody's produced a snagging list everybody else think so that persons done it but have they checked what the remit was that was behind that snagging list are they sure that the person producing it was really looking for all the things that they should have been checking her being covered under their appointment
so and then when it dispute arises the responsibility matrix is a good place to look the consultant needs to think does the responsibility metrics properly show what your responsibilities were and if not or in any event can you properly show the scope of what you thought you were contracted to do by the contract and then also by the meeting minutes which show what everybody was discussing, what other people thought your responsibilities were, what you took responsibility for in those meetings. Obviously all of this is subject to the contract but it is persuasive where you can see in the way that the contract was being operated, that one person has stepped forward to take responsibility for something, which takes me onto the third one that who in fact did what? Did one party assume responsibility for something in a way that enabled you to rely on the fact that they were doing it and not you for example has the employer paid a specialist to do it and then provided you with that report in a way that means that you're not also required to do the design work that they have also done
I'm with the employer does the responsibility matrix help you to identify both primary and secondary liabilities by that I mean not to be able to be clear who was the person who was actually doing and who were the parties party or parties who was supposed to be checking reviewing making sure that that was done and are you clear about how much how far down that road of cheque review inspect coordinate that all the individual parties are because they're different tasks and it ought to be able to be clear to you from the contract documents precisely which party is doing which of those but in my experience it often isn't clear
so moving on that too I'm going on spill my time onto the multidisciplinary design team I've seen this a fair bit more in recent years where in the in a more traditional contract each consultant will contract directly with the employer and there's a nice clear lines of communication and responsibility but increasingly clients on big projects quite like the design team to come as a as a pack when so they've got one point of contract act and importantly one route to contractual liability if something goes wrong with the design so if you like the employer is buying out the risk of gaps between the design team insofar as what they the services that they receive but of course it will make the contracting party liable for the failings of all the others and it makes it all the more important for the contracting party to being very careful indeed when entering into that contract that there aren't gaps between the other consultants and it may have been asked to contract in this manner quite late in the day but I think it often happens that each of the consultants have negotiated separately with the employer but at a relatively late stage one consultant is asked to take the mall into one contract which it comes responsible for and so then the risk of gaps the risk of the design results but is not being aligned is far greater I'm saying there are a number of issues which blow from this the first one is communication
how are you going to structure your design team so that you're not adding delay into the system because you're all because you're the contracting party. If I'm the architect and I bought sub consultants who are engineers anemone consultants and qs's how am I going to be sure try both keep visibility on what is going on with all those consultants but I'm also not adding deley so when there's an anemone request for further information how am I going to to be sure that I can both be sure that it's being carried out in the right way by my consultant who I'm contractually responsible for but I'm also not adding in delay into the piece and that it is a is a challenge
the direct contact particularly where consultants have at negotiated directly with the client from the off there's often a tendency for the parties to carry on talking directly leaving out the party who actually is the contracting party and that can cause very big difficulties
I had a case involving an airport where the architect had responsibility for the entire design team but the problem was with the roof and with the engineers and this caused big problems because there had been a number of meetings directly between client and engineer and so it wasn't visible at all times, to my client, the architect, quite what the engineer been asked to do quite what decisions the client had made and although at a certain stage it had realised these meetings were going on and tried to shut them down people being what they are they carried on emailing each other and not doing it so you need to have very robust at systems and to have identified this in advance in order to try to stop that happening and to keep visibility of it
you can also have problems with billing. Are you all doing the same thing? if you if the contracting party are putting in all the time sheets through to to an employer whose paying on on that basis are they all saying the same thing or are your time sheets from one consultant actually meaning something different from another and
we had a case where with a Middle Eastern government employer who was a payment dispute challenging all the time sheets and required us to identify the policies on holiday policy on lunch breaks and even the policy on going out for a cigarette and we had to drill down into all the sub consultants to find out what the answer was about how their time sheets were put together and of course everybody had entirely different policies on it and were operating their time sheets on different ways and I think the important thing about that obviously the client was using this all as an excuse not to pay on time and the whole thing was slightly ridiculous but it did beg the question if we don't if we're all together and we are building it all through one party as if we were that party then it does become important for the party with that contractual responsibility to understand the invoices that are being put put through and to have some visibility about the basis on which it's done
obviously also billing if you're not paid can you withhold from other consultants quite an important thing to have in your contract in the UK there are statutory problems with withholding but in different jurisdictions that it will be different
and then finally how to deal with errors or disputes now this I think is quite an important one and one where from my experience I have a very strong view about how what ought to be done at the beginning to avoid it happening
in one case for the design team there was a problem there was a design mistake that had happened it was more limited than was being contended but there was a mistake and the difficulty was in this composite design team of working out how to get the sub consultant to show enough of its documents and its case in order for a defence to be made where it could be made and how were the parties going to deal with questions of whether to make an admission or whether to make settlement offers and so on and what we did in that case and it was so complicated and difficult was we had to because the contract between the architect in the engineer didn't have any sort of dispute resolution mechanism it at least not as not one that was satisfactory for this purpose we had to once the dispute had already a rhythm we had two two negotiate and agree a cooperation agreement in order to have access to the documents access to the witnesses access perhaps in part to the experts I didn't we actually got that and still mechanism whereby some independent third party could be brought in to adjudicate on disputes between us as we ran this joint defence back to the employer and it seemed to me that it was a big cautionary tale because it was very difficult to get agreement it was very difficult for my architect client to defend it at all without the cooperation that we were seeking in this agreement and without their documents but they they didn't have to provide us with the documents they could have left us to see them further down the line in our a separate proceedings which ran the risk of of conflict so it seemed to me that some thought to go with the with these design team structures that some thought to go into having a draught or having a cooperation agreement within it which enables the parties in advance to work out how they will resolve arguments between them or a mechanism to do so so quickly some sort of adjudication style process whereby you can move things on and presented joint defence upstream while at the same time if necessary preserving your disputes between each other downstream and I think contract isn't subcontractors have got a long experience of dealing dealing with this but a lot of the standard form contracts go back-to-back and there's a wealth of experience with it I think with the design team it's a newer situation professional firms are more embedded in their culture the way they do things the standard terms they use how they want to contract And so it's less familiar territory but the take home that I would want to say is that it ought to be thought of at the outset when entering into these sort of multiparty design team contracts becausr a few clauses which set out how the parties will behave if they fallout can save an awful lot of time and money later on down the line
so that is my my thoughts on the responsibility matrix a useful tool but to be used with caution and to be very clear if you're buying to get into the contract what role you expected to play and on multidisciplinary design teams think ahead about all the sorts of difficulties that I've thrown up and give some serious thought to having some clauses which deal with how you will cooperate to defend against the employer if something goes wrong with one of the one of the players
35:58 Bill
I mean you said words that warm the cockles of my heart in only parties thought about collaborating little more at the outset sort of a couple of questions and then Andrew raised a question and others might want to comment in the chat is what you sort of seem to highlight is the issue of communication or lack of it do you do see that there are any specific reasons in your perspective you know post event why parties shouldn't share the information about consultants appointments across those consultants obviously redacting information about their fees because I I agree with you I think there's a lack of openness about that
36:59
yes I mean I'd be interested to know from others on the call what they think because from a lawyer's perspective it seems to us and not no brainer. I think it seems to me obvious that certainly anyone with coordination responsibilities or any sort of checking or review obligation ought to know in detail what the party that they are coordinating and checking is supposed to be doing, but also with specialist subcontractors it's really important that that parties understand exactly what that party has been asked to do and whether there are any exclusions in their contract so I would think absolutely redact the money if that probably be sensible or anything else but redact the contracts and then share them so that everybody understands who's doing what
37:55 Bill...
39:35 Claire
I think it's historic that it's the architect and perhaps it is a little bit of fashion nowadays or needs some thought if I was advising the employer I would advise them to think very carefully through that and who would be best placed to do it bearing in mind the technical nature of the project
40:00
yeah okay I again I I totally totally green music to my ears
40:07
Andrew Adelaide hasta question so he said many complex projects having skated interface management instruments such as protocols deed agreements interface registers some even mandates software short of incorporating these into the standard forms all the better ways to deploy these tools designed to better detect the gaps and overlaps and communicate so think it it do you do you say that responsibility matrix should be a a more substantive document that should be agreed and discussed perhaps between project manager and the lawyer at the outset and then fed into the appointment as opposed to as it appears at the moment it seems to be a document that sort of at the end of the sequencing it
41:20
if it's going to go in the contract then it needs to have some lawyer involvement to cheque the implications of it and I think my real concern is that it often looks as though nobody's looked it at all from the legal side and it's just gone in at the last minute. I would welcome any sorts of tools whether anything or anything else which encourage parties to look at it but what it really needs whatever tool you need it needs engage human brain, by somebody to really think through where these pinch points are going to go, because it won't be the same on every project and it will depend like I say on quite what the other parties have been asked to do what the different roles are (42:10)
so it needs somebody who really to to carefully think it through and any tool you can you have which encourages that process and it opens up that discussion is great but really it's the input into the tool that that I'm interested in not just the use of a tool because you know as we will see with something like risk registers you know they're great it's a useful exercise to do but if you haven't got the right risks in you find you don't it's not much is due at the end of the day and say the same with with these interfaces and how to divide up responsibility it's got to be done sensibly and cleverly really in order for it to preempt the sort of problems we're talking about
42:57 Bill
I think that's exactly right but I think it's I'm amazed IT projects employ at huge cost a lot of consultants lawyers sometimes we have less involvement but there seems a reluctance on clients to actually have better engagement between all of their team at the outset which is really your point Claire OK I know this couple other questions will come back some of the end I will go to to Chris I'm not sure Chris if you were being joined by your are your monster cat he's left the room left less room in disgust and very wise so Chris
43:51 Chris
right thanks bill I think when I was first asked to talk about this one of the things that I thought of is that if I can give you one tip to proactively help you to manage some of your projects and stay out of having to hire consultants to clean up the mess as it is that would be my my goal today is is free to take something away from my thoughts and they're going to be very basic but I think we've touched on on on some of the issues I really want to talk about what I think you should do and starting out in a project because remember I see a lot of the bad of things that people the things that people miss the things that people should be doing and don't do that ultimately causes problems talk about certain areas during the project performance that I think are important and then when you're cleaning up your project and it's over what are some of the tips that you want to do that
and I think starting out is as as clear talked about it's the contract and I think you'd be surprised how many people in the field haven't read the contract, the main people who are managing it, the owner, the subcontractors I really recommend and I've used different language over the years and teaching this but you really need to read the contract you need to read it again you need to get people to constantly read it who are managing the aspects of the project that require notice.
I think one of the best things I've seen over the years is an owner Anna contractor got together and created a tab to version of the contract with key areas such as the milestone dates because it you'd be surprised at how many people have milestones in the contract and put their baseline schedule together and they don't match and especially on infrastructure projects that are multi year projects you're not going to have something done in a year it's generally multiple years that you can have multiple entities sit down & contracts throughout the course of the progression of it and not necessarily have all the milestone dates (46:08)
I've got a project right now that's a multi programme project on a major infrastructure project and the entities that are signing up don't all Mary up to the same milestone projects and you can imagine the issues that are going on from the outset of that and
I think the other part that I see that is that is most interesting and most quite frankly you would think it used to be very easy as how to communicate these provisions is it supposed to be a letter is it an e-mail or people using text you know I'm seeing a lot of WhatsApp now being used by people to communicate on projects because the cell phones are much easier for people to carry around and I will definitely put out there to people how many people are now starting to get into a request for production and a claim for text messages or WhatsApp messages that seems to be where people are going and how do you keep that chain of command and retention of texts and WhatsApp messages and quite frankly you're dealing with people on construction projects outside of this out of the sophisticated management people. The workers and the people who are in the field they are not always as appropriate as they should be. Are you really training people on what they should and should not say when they're doing emails and texts? it really is a big issue that I'm seeing on projects as people not being appropriate because they still consider it to be a conversation but once you write something down certainly in in arbitrations and an discovery issues that's really just like a letter
and then figuring out what your notice requirements are for impacts for price escalation for force measure events I think one of the biggest things that's going on now is a lot of contracts reacted to COVID and they started putting price escalation measures it well they talk about how much you can claim how you can enact it but the question from an owner's perspective in my view is what price escalation should contractors subcontractors even architects from the terms of labour what should they have put in an assumed as part of their contract contractual measures and pricing of things because certainly I have a case now where they're claiming major price escalation they signed their contract in the third quarter of 2020 but they're not they're not giving us any information on what they assumed for price escalation so now you have a very large claim for material prices that as we know in 20 21 certainly grows substantially And are all over the place so you know those are the provisions that I think people should sit down and talk about just like bill was kind of leading into you know what's going on and so cameras could go to the next slide you know I do think this responsibility matrix is very important to layout for people but it's also important not just to lay it out but for people to follow it I really think it like bill said have a kick off meeting everybody should sit down and talk about the responsibilities of things it really is in a lot of instances that breakdown of communication is where projects go bad you need to talk about the contract and I've said it again need to talk about working together how to communicate with each other how are we going to do it who's going to do it who were the people that you're supposed to to talk to and quite frankly I think if you're an entity on a project you need to find the uncooperative parties who are the people who don't seem to want to cooperate with you how do you deal with personality issues on a project because that seems to be a major issue starting out as if you have entities that don't get along and that's quite frankly a rather big issue on projects when one besides he knows more than everyone else and is going to manage it best for his client rather than maybe for the good of the whole because at the end of the day I believe all the entities are working together for the same thing they want a successful project where everybody makes money I mean that's that's the whole goal of this
and I think establishing the baseline as soon as you can when you start a project is also very important because have a number of projects where the contract says you have to submit a time impact analysis or however you're going to delay analysis based on an approved schedule well if you don't have an approved schedule for the first 18 months of a project how do you ever go in and submit a time extension that's going to be approved by one side or the other it's really important to hammer that out push both sides to get back down whether you're the owner the contractor or or the design team we need to be involved in getting that that done or else
51:31
the first 90 days I think the first 90 days of a project are very key and critical to a successful launch of it I really think in those first 30, 60, 90 days that people should be out reviewing things quite frankly more than they would normally because you want to make sure that everything is on schedule you want to address any open items or is claire talked about scope gaps and I know that there's a lot of software out there that people are trying to say well if we go through this it will fill these scope gaps it will fill in areas that that are missing and I don't think that anything substitutes for just people sitting down and talking and trying to deal with those issues (52:20)
really resolve those early issues the RFI the request for information that that come out early missing information personality issues if you can resolve those and not let them I would say stagger or let them lag in those first 90 days I see projects much more successful that get those out of the way I mean there's a number of times when I come into a project and they say well the contractor wrote me 1000 RF eyes in the first six months of the project the question becomes well what did you do with those thousand RF eyes and some of them they let lag for a long time and later they became issues I really think it's important to try to get everybody working together for that
and to recognise do you need some outside assistance not that you need to come and hire a consultant but do you need to bring in an extra person or for a couple of months to hammer through some issues early on to make sure that you don't have problems later because certainly one of the biggest issues that I see is small problems at the beginning snowballing and becoming much bigger issues later on and if a project starts off bad I rarely see it ever get back on track and become more successful so it's really important to get that out of the way early on
53:52
I think it's it's very important to resolve issues as I talked about it between the various entities the designer in the owner should sit down and talk the designer in the general contractor all these people should be getting together to talk about issues and we're and get into the resolution alternatives to big claims and litigation you really want to try to deal with this stuff and I think part of what some of these things arise from is the entities that are managing whether it be the contractor the owner of the designer don't really sit down enough and take a holistic view of the project where does it stand financially do I have subcontractors that are already coming up with claims for escalation or delays is the schedule off is it is the project reasonably managed are the relationships going well between all of the parties I think each side needs to look at these things and come together and and meet on these and once in awhile maybe you do need some outside assistance to come in some sort of alternative dispute resolution person obviously I think projects put dispute review boards in sometimes they're not binding do they work sometimes they do sometimes they don't it depends on the cooperation of the people in the in the communication that people have starting out so again I think it goes back to that people talking people communicating figuring out the issues and resolving them as soon as possible I think if you get one party that tends to sit back and try to push claims off and have a lot of claims and hold things or you know is pushing these subcontractors to not make any waves all that creates a big surprise at the end alright so then you get to the end of a project
56:03
I think it's important as you get into into your last six months of a project so it's a lot it's a long project figuring out what's hanging out there do you have unapproved change orders are you going to have problems getting the as built drawings which always seems to be one of those things that somebody holds over the owner of I won't give your as built drawings until you pay me is there testing documentation outstanding an if you've got pending claims I think one of the biggest things that that parties don't the parties underestimate is the fact that towards the end of a project you're going to see people scatter you're going to see turnover you're going to see people leaving, documentation disappearing, it's important to start putting that together assembling your log books personal notes from people gathering emails and text if that's what it's going to take to do it and quite frankly interviewing key project people to get their take on what's going on in the world
I can't tell you how many projects I have right now where there might be one person left who worked on the project and that was a person who came in at the end because everyone else was gone. It's really much more expensive much more difficult for anyone to deal with claims if you don't have the project people there and I think it's important to engage qualified personnel at the end of the project to try to go in and figure out what's going on get to your answers get to figure out whether this is a claim that should be moving on or not
I know in a lot of projects I find it from the owners side the contractors decide or the design side that these claims become very personal people and the people involved in them are going to tell you they have the best claim ever this is an easy claim they the other side is at fault and getting a neutral or somebody even within your company come in who hasn't been involved in the project and give a fair assessment of really where things stand can I think help really resolves issues at on a project much quicker than you would be if you if you leave nobody there to come in and make that that that fair assessment so for getting up up I guess we've gone over a time little bit but I want to have sentence that some time for questions there so again I think it's communicate I think it's read your contract and understand your contract and follow it because I the one question I will pose to people out there that I see happening more and more is if you have a contract and neither side follows it and you get to the end of the project nears claims and now one side wants to follow the contract and the other side says that's not the way we manage the project whose right can you go back to a project where the contract has been in essence abandoned and now enforce it.
bill what do you what do you think about that question
59:20
Testing well I think it if it's the the contract you look at its in its application I think clear such illnesses well and you're looking at how the passes of actually applying the provisions on the way through but your starting point is the contract and I've given advice and and had my advice ignored to people so it is very common in projects for employers are unit developers of projects to say to their contractors all you know we don't want you to give notice et cetera et cetera and so notice haven't been given and then six months later longer the retort to contracted with he didn't give any notice you know you failed to comply with contract there conditions precedent and I said to people we know why didn't you send a letter what do you send a letter and e-mail say Chris it was a great meeting Perry surprised you've told us not to serve any notices in accordance with the contract but you know if that's what you want because at least you got some evidence of what has been done and again your words are music to my I can't tell people how frustrated I am I'm very happy for people to slag off lawyers solicitors are not big fan of lawyers either but we get slagged off for our costs but this is the point read the contract you know so many people don't read the contract
1:01:04
so Chris I ask questions here is how useful do you think and workshops are between parties at the beginning of projects and how often do you see there being a full sort of inter party workshop between employer owner and contractors?
1:01:25 Chris
I mean I've seen them I've seen them put into contract provisions where they've said hey we have to start off with these workshops we start off with a teaming agreement people get together I think if the parties are willing to work through that they can be very successful and
01:01:41
there are some contractors who I work for who start off with a requirement of all the subcontractors and their project managers to get together on site and have a big meeting and talk about here's how we're going to do things I think that they are generally more successful than the people who don't try to get people together, to the entities that I know that don't share information between all the parties, I see those people having more claims I think it's important to try to do something like that but you also have to have the people in place to manage those sessions who are cooperative people like you can have a session that says I was I was meant to was mandated to do this but if you're not a management person who gets people to work together you're not going to have a successful meeting
1:02:38 Bill
I think it's right he's having a good facilitator but in the large projects I've had where I asked clients and managed persuade them to have proper workshops on the contract terms that the incident of disputes is much lower than oh clear with your experiences and I'm also interested Chris by your comments at the end I think that and also very perceptive obvious you might say it is because the it is entirely common for people to to disappear and I'm always staggered at the end of projects where people just I haven't have an anticipated that there is a coin in the last Siemens and they've done virtually nothing to wards the end of that project to maintain or obtain you know text and things are especially as you say nowadays that the we have a paper problem in construction but it's now it's now much worse because I guess stuff on WhatsApp text you know we got e-mail and again as you say people not understanding that what you sending a WhatsApp and someone thought was you know at the time funny is a record of things. I don't know if you if that's something again Claire that you've you must have experienced that from being brought in at the end and thought nice
1:04:24 Claire
Yes I've seen another barrister ask somebody in the witness box who's mentioned WhatsApp that they've got their phone on them and the poor chap had to bring his phone out onto the desk and there was a risk in in the end it didn't happen he conceded the point there was a risk that he was going to start showing his whatsapps to the tribunal in the middle of an arbitration to make good the point that you've made but I mean my big bugbear when individuals have been heavily involved and would clearly be an important witness and laid off after the project over without the their employer thinking of their actual value to winning their case in the end and even when somebody does move on they haven't downloaded from them a draft witness statement or at least an account and all their documents and so on I think that that failure to think about your personnel as a property in your litigation and preserving that with the litigation and keeping them in your workforce or if not making sure that you got whatever they have to contribute and you kept the goodwill with them as well but if people even bad terms and you think why you just shot yourself in the foot that's the only witness who can speak to these events and you've fallen out with them and they've gone elsewhere and maybe they'll cooperate with you in the future but maybe they won't so think about those services I think is very important
1:05:54 Bill
and I think that's where I would encourage clients to either come to you Claire or Chris, it is that sort of external evaluation towards the end of a job just as I think there should be greater involvement at beginning. At the end of the large project you must have an idea of whether or not you are either going to be facing a claim or bringing a claim and bringing in a little external assistance to give you that sort of distance of somebody saying just the points you I've been making is so important and yet unfortunately so rare in actually happening and like I see people disappeared and they've taken the phone the laptop that was the project managers on the site when with the project manager and you have none of that information where it's not downloaded to a central server it was all on that particular laptop and if you see these people are being sacked and then and then we're centre long several months later basically begging them to give a witness statement and it's generally not very welcome. Dusan said he's been faced I faced with the death of a former colleague yet valuable person. So I have had that as well not the death but in certain projects when you can see people either going to leave or retire we have people who have you know that they have a long running illness answer for example and whether or not that is terminal again that something about planning and I think planning at the beginning of the project and planning at the end those are the lessons that Chris and Claire are trying to get you all to think of. um has anybody else got any questions? Michael Galvin asked before about the use of priority clauses Claire so that's to some help
1:08:22 Claire
good idea yes absolutely and at least then it gives a tool but resolving any inconsistencies although even if a document lower down the priority is very specific about something showing that the parties have addressed their mind to it might still bite against more general clauses earlier on in the document so it's not a necessarily a complete get out of jail free
1:08:48 Bill
no and also taking really point Claire if a document isn't properly detailed isn't really matter where you shove it in the priority of things, if that document is incomplete in some way or hasn't been looked at in terms of the trip documentation as a whole necessarily assist I'm has anyone got if there are any other questions I again Chris I your point it's the point about having a tab contract I'm I have put this to some contractors in recent months about I had a meeting with some contractors and asked them whether they had extracted from their contract a summary of all the notice provisions and they said no and I said have you shared the details of of the notices you have to given and to receive to your site project managers said no and am surprised is that your experience is well there's often just no extraction of core information and therefore you have people working on site who really have no idea what they meant I mean they can manage the procession of pouring of concrete or something but they don't they don't they've not been given any heads up about the contractual obligation
1:10:22 Chris
cast decided to make an appearance here I'm always surprised and I think the assumption from top management people that when you put somebody out on a project that they know what to do that they know to read the contract that they know to do certain things and I think there's sort of this and I'm going to say it's it's it's like civilization now the rush to do everything right now so you get out to a project I've come from project data project B I get out here I just assume the contract is is a certain way and I'm going to just start managing the project and building it cause I'm a construction guy we have an owner who comes in and says well I've hired a construction manager Ora and owners representative and he's going to manage the contract so he knows what's going on which is why I think there's this assumption that people know things and are doing things instead of a meeting to say OK let's all talk and go through the contract and make sure we know where it is there's not this you know even I think from management to the field team or owner to an owners Rep to sit down and say what have you done do you understand this project what is this project that discussion doesn't happen there's too many assumptions that are made around that and I'm always surprised at it when I get to a project especially find somebody who's used to doing a design bid build project who is now put in charge of a design bid or design build project and their managed differently the contracts are different the notice provisions are often different and so if you're trying to manage a design build like a design bid build your going to have problems and people don't always think about it that way in the management people have no idea how was being managed
1:12:30 Bill
yeah it is again that lack of communication I disconnect isn't it all the way through
okay well if there is there are no other questions I have to say thank you huge thank you to Claire and Chris you're everything you said is is so spot on hope people have have listened and take note and I hope that people share what you've used to get out because I don't think we'll ever getaway from litigation disputes on projects I think as long as we have humans whether materials and time there will always be dispute but I do strenuous Lee believes that we could reduce the scope of many dispute by taking steps and actions that you set out and a bit more communication if I can remind everybody that our next webinar is on the 20th of April and those the details there and as you can see Kim Franklin case is going to talk about the future of international disputes and David McMahon from Ryder architects can be looking at actual project Whipps cross which was a huge project involving hospital and housing something else and how collaboration really worked in practise I'd like to thank everybody for attending today if there's anybody you saw on the chat while they're on the want to be put in touch with please let me know and I'll happily facilitate that but finally I just again might thank Claire and Chris for attending an Chris you can you can go and have an early breakfast now thanks and I'll see you in ridiculous isn't it were different size of the world I'll see you in Argentina you know sounds goodwill see in may OK so thanks very much and tomorrow you'll get an e-mail so you can download a note something else and it's been a pleasure having everybody on OK take care
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