How to tackle this claim
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Sreejish VishnuMember for 20 years 11 months
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Following is the situation,
Delays and responsibilities - There are about 20-30 main delaying events from the Client. The Contractor has their concurrent delays mainly due to the lack of resources and poor management of resources.
The baseline program is almost neatly drafted as far as logic linking/sequencing/activities are considered. But it does not provide productivities considered by the Contractor. Also it does not provide resource requirements considered for activities.
Variations – there are around 500 cases of variations to the project varying of minor, small to big in quantum.
Updates – the program updates have not properly incorporated variations to the work. For example when a variation is observed, the construction team have gone ahead with constructing it without reflecting any of this in the program updates. Also the changes in actual construction logic as against the planned logic is not updated in the program updates. Due to the horizontal nature of project, there are so many activities which are started in 2007 (say) and have continued upto 2009. I mean activities which are not split even though the work is virtually stopped on them. The actual reason is that the resources have been re-deployed from these activities towards some other work fronts and the planners did not even know that the resources are re-deployed.
What would be your suggestion in approaching the delay claim of this project.
Do I need to re-build the entire updates? It is a 15000 activity program as of now. How could I move forward to do a TIA for this case.
Delays and responsibilities - There are about 20-30 main delaying events from the Client. The Contractor has their concurrent delays mainly due to the lack of resources and poor management of resources.
The baseline program is almost neatly drafted as far as logic linking/sequencing/activities are considered. But it does not provide productivities considered by the Contractor. Also it does not provide resource requirements considered for activities.
Variations – there are around 500 cases of variations to the project varying of minor, small to big in quantum.
Updates – the program updates have not properly incorporated variations to the work. For example when a variation is observed, the construction team have gone ahead with constructing it without reflecting any of this in the program updates. Also the changes in actual construction logic as against the planned logic is not updated in the program updates. Due to the horizontal nature of project, there are so many activities which are started in 2007 (say) and have continued upto 2009. I mean activities which are not split even though the work is virtually stopped on them. The actual reason is that the resources have been re-deployed from these activities towards some other work fronts and the planners did not even know that the resources are re-deployed.
What would be your suggestion in approaching the delay claim of this project.
Do I need to re-build the entire updates? It is a 15000 activity program as of now. How could I move forward to do a TIA for this case.
11 replies
Oldest first- 0Scarllet Pimpernel ·First you have to know that there are lots of disruptions to the original intent of the baseline plan.
the consequence of this diruptions ... blah blah blah.
You can start somewhere.
and i would suggest: study AACEI forensic schedule analysis
you can find a lot of scanrio there. you limitation maybe is only time, i.e. you do not have time to study at the same time prepare your claim
In this case: you hire an expert to do the work for you.
Tell your boss in this line of dialogue:
Hey boss, what is this? we are supposed to do an exercise that will eliminate potential for liquidated damages and possible money for prolongation that may enrich the company in the tune of millions of AED.
Then, why are you delegating it to me, a neophyte. Are you serious boss.
Then, since you are PP members, you can always recommend lots of our peers in PP who are experts, wannabe experts, etc.
Thank you,
Scarlett - 0Mike Testro ·Hi Sreejish
A few questions first.
1. What As Built records do you have?
2. What software are you using
3. What form of Contract
4. Are you assisting the Employer or the Contractor?
Even if you give the right answers I think Scarlett may be right - you will need expert delay analysis help.
Best regards
Mike Testro - 0Sreejish Vishnu ·Hi Mike
Thanks very much for that.
I’m answering it in the same sequence.
1. I have monthly updates of the program. But those updates are limited to Actual start and Actual finish dates of activities. Work started almost 2 years before. There are other records like RFI registers, drawings log, MOM log etc. but the program updates do not reflect the as built intentions of the Contractor of each updated point. I mean the construction sequence has totally changed and is now very much different from the planned sequence. But these are not reflected in the program updates
2. I am using P3 3.1 as the software.
3. Contract is fixed lump sum contract. Prepared in line with FIDIC conditions but highly modified to suit Clients requirements
4. I am with Contract Administrator (CA). We need to assess the Contractors claim and recommend to Client. I have now got the Contractor claim submitted by As Planned Impacted method.
- 0Sreejish Vishnu ·I am just trying to explain the as built records a little bit more.
suppose there is an activity "Electrical final fix for room XXX". Once the Contractor started executing this activity they raised a Request for Information (RFI). This was responded back with a few added works. As a result of this, the activity got delayed by 5 months (say)- for procurement and installation of new light fittings. So, the activity will show a start date and finish date of more than 5 months apart. But the reasons for this delay could not be found in the program
Along with such delays, many activities are delayed due to Contractors mismanagement of resources.
Thus the updated schedule has so many activities with planned OD of 10 days (say) and Actual durations of 100 days or 150 days.
Apart from this there are some varied works, which are not reflected in program at all by any activity. But the work is actually executed at site. - 0Samer Zawaydeh ·Dear Sreejish,
What is the Contractural project duration and what is the expected duration for completing the project?
How much is the Contract Value and how much is the cost of the 500 Variations.
Will the Client give extra time for delays cause by them? Will they compensate the Contractor for this time or not?
Since this is under FIDIC, then you can follow FIDIC 1999, clause 20.1, "If the Contractor fails to give notice within such period of 28 days, the time for the Contractor shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim." So you can filter these claims that satify this statement and disregard them. This is you first step.
Please remember that the Contractor has 42 days to submit a fully detailed claim from the time that the event has ended, and the Engineer has 42 days to respond. It is very important that these dates are respected in order to confirm with FIDIC requirements.
With kind regads,
Samer - 0Mike Testro ·Hi Sreejish
Let me see if I have understood your siuation.
You are defending a claim for the Employer from a Contrator who has a doubtful baseline programme and does not have a realistic As Built record.
He may have a list of events that look very impressive in total.
The Contrator has to demonstrate the "Causal Nexus" of every event - A Global Claim will not work - nether will a "Time Impact Analysis"
The Contractor has to demonstrate Cause and Effect of every alleged delay event - Plus he has to show how the event related to what actually happened.
And then he has to show that none of his own delay events were concurrent with any possible client events.
So your initial response should be on the lines of:
Show me a detailed cause and effect analysis of each one of the alleged delays.
Demonstrate how this was related to what actually happened on site in respect of the As Built Records.
Show how your own delays did not work concurrently with your alleged delay events.
Its much easier defending than prosecuting.
If there is big money at risk then the sooner you get an expert on board the better.
Best regards
Mike Testro
- 0Sreejish Vishnu ·Hi Mike,
Your understanding of the situation is perfectly correct. At present we are defending the claim by requesting Contractor to substantiate the case.
But one thing..Why did you say that a Global claim will not work, neither will a Time Impact Analysis.
If we hire an expert will it be possible for him to do a TIA with the above case. or atleast a window slicing analysis. how would an expert move ahead with the above case. i mean will it be possible to work when the updates are not reliable and when the number of variations are too many.
thanks for your response
Regards
Sreejish - 0Mike Testro ·Hi Sreejish
Sorry when I wrote Time Impact Analysis I should have said Impacted As planned.
Delay analysis has moved on with case law - in the Uk this has come to the point whene only a fully detailed Time Impact Analysis will work.
It may be different in your jurisdiction that is why I reccomended hiring a local expert - not to do the analysis but to ensure that what is being submitted is valid.
It is quite possible that the Contractor has a a valid case but but has not presented it correctly.
Alternatively your Contractor is trying it on with a spurious case.
Best regards
Mike Testro - 0Samer Zawaydeh ·Dear Sreejish,
Start with a list of all the events and write next to them the delay duration, supporting documents, and the critical activities associated with them. If they pass the requirements of FIDIC regarding timely submittal, then you can proceed with doing the analysis per event.
Let us know if this is helping you. If you need more details, please ask.
With kind regards,
Samer
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