King or Queen for a Day

Suppose that you were made King or Queen for a day and were given the task of changing the asset delivery industry – you were given the responsibility to change anything and everything to make the process of planning, designing, procuring, constructing, operating and decommissioning assets a delightful experience instead of one fraught with problems.  What would you do?

Perhaps, first make the process more collaborative.  Reshape regulations to streamline approvals, establish consistency across political boundaries, support new technologies and discourage prescriptive outcomes. Encourage integrated project delivery contracts and processes that ensure that each party involved in the delivery of a project takes responsibility for the risks that they can and should control and that all parties share appropriately in the success or failure of the project.  Maybe implement effective communications and management tools that allow project information to be rapidly and completely distributed to all involved stakeholders.  Ensure that all stakeholders are involved so that decisions are made considering the whole life of an asset instead of what is most beneficial at that point of the process.

Second improve productivity.  Encourage use of cutting-edge tools, equipment and processes with the understanding that the industry will share in the development of new technologies that provide benefit and that the risk of technology development is shared.  Encourage disrupters that will help the asset delivery industry achieve productivity gains as good as or better than other industries have achieved.  Recognize that labor must be trained to take advantage of these new technologies and that respect and support for the worker is vital in order to convince talented people to be a part of the asset delivery process.   Respect includes making certain that the work environment is safe and that an individual can earn enough to live with dignity.  Support includes providing training and technology that allows everyone to be productive enough to pay their way.

Third consider the environmental footprint of an asset over its entire life.  Decision making focused on each phase of an asset’s life may result in a higher overall environmental cost than when decisions are made based on the entire asset life.  Reducing environmental impact by limiting the impact on the land, energy efficiency, recycling of materials, use of renewables and similar decisions all require consideration of the entire life of the asset.

Last, measure success, demonstrate what works and what doesn’t so that the entire industry benefits and can focus on improving and evolving.

It might be a long day, but it would certainly be worth the effort.

Using Artificial Intelligence in Risk Management

One of the challenges that the construction industry has is a lack of coordinated data sharing.  Some agencies have started to collect large amounts of data, but it tends to be project specific, not particularly accessible and not organized in a way that it can be easily analyzed to develop usable information. 

Data mining could be particularly valuable for risk management and improving the quality of design and planning contracts.  If an agency had multiple years of change order data from its construction contracts it may be possible through data mining to extract information as to the types and severity of changes.  This information could be studied to identify reoccurring problem areas.  For example, if it was determined that large and consistent geotechnical related change orders occurred, it might point toward changing the design and planning process to require more geotechnical investigation. 

This same data mining could help categorize changes so that the severity and probability of various types of changes could be better understood, allow for better contingency forecasting, and promote better planning for how to handle individual changes.  For example, knowing that weather related changes occur on a certain percentage of a certain type of project and have a certain average impact would provide a better foundation for predicting the impact of these changes on individual projects and encourage more effective contract language and decision making for dealing with these impacts.

If such data is available, and before analysis starts, it needs to be reviewed to see if individual change descriptions accurately explain the reason for the change (for example, is there a bias against stating that there was a “design error” or the owner “changed criteria”) and whether the data is sufficiently detailed to extract usable keywords and phrases.  This exercise would also help contract administrators better coordinate with management to identify key data that should be tracked in the future and promote consistent change order language.

Is Dispute Resolution a Part of Risk Management

“Isn’t Risk Management what you do prior to a problem occurring and Dispute Resolution what happens after the problem has occurred?”

I often talk of construction dispute resolution and risk management as if they are the same thing.  If risk management is the identification, management and monitoring of each risk, that implies that a process has been established to determine how each risk will be handled.  This would include establishing who is best able to handle the risk, an approach to dealing with the risk, and subsequent monitoring to see whether those decisions are appropriate. 

If we define dispute resolution more broadly as implementing systems to deal with and reduce the impact of issues as they are identified – are the two that much different?  Some dispute resolution processes encourage consistent third-party involvement with a project from initiation to completion.  For example, Dispute Resolution Boards (DRBs) are often required to meet regularly throughout the course of a project so that they are familiar with progress and potential issues and, because of this familiarity, are able to quickly understand and deal with issues as they develop.

Many construction risks are not discrete, stand-alone occurrences, but are hard to separate from normal productive activities and often have related residual issues.  There is usually a period of time where consensus on the extent of the issue and appropriate resolution can be initiated prior to there being a significant impact if systems are in place to allow this to happen.  This process does not even have to be non-contentious – as long as there is alignment of purpose, agreements can be reached for many different and divergent reasons.

If dispute resolution is included as a part of a project’s issues escalation process, it would go a long way to meet the desired objective of avoiding or expeditiously resolving issues that could impact a project’s success.  This requires looking at ADR as not the last resort before litigation or what to do when everything else has failed, but rather as an integral part and an important element of the risk management process.

Why Contractors Do What They Do

What is the impact of some common contract terms:

·        Claim notification must be submitted within ?? days of an occurrence or the claim is void

·        All costs must be submitted within ?? days or they will not be considered.

·        The amount negotiated is full and final settlement for that change

·        No total cost claims are allowed

Each of these requirements is perfectly sensible, you need to be notified in a timely manner, costs should be collected expeditiously, and once negotiated, the costs of changes should be final.  Unfortunately, many changes are not so clear-cut as to have definite start and completion dates (do you make a claim for changed conditions after the first hard driving pile of 500, the 10th, ???).  A series of changes may have a different cumulative impact than the sum of the individual changes and some changes result in incremental increases in the cost of the work (for example, a high-water table impacting the rate at which material can be excavated).   If you work in area where strict notice regulations apply, as a contractor, you may have little choice but to claim quickly and claim often in order to protect your right to recovery.  Even if substantial compliance with contractual notice is accepted in your area, why take the chance?

What constitutes notice is sometimes an issue as well.  Is formal written notice of a potential claim required, are site meeting minutes sufficient, is the change so obvious that notice is a given?

A contractor has every right to be compensated for changed conditions and, as an owner, you should want your contractors to be paid for the work that they have done and to be recognized as a partner, not a combatant, in delivery of your projects.  Ignoring contract requirements is not a solution for either party, but appreciate that your contactor may be playing by the rules that you established and react accordingly.