use of a claims triage workshop to choose an analysis method

USE OF A CLAIMS TRIAGE WORKSHOP TO CHOOSE USE OF A CLAIMS TRIAGE WORKSHOP TO CHOOSE

AN ANALYSIS METHODAN ANALYSIS METHOD

CDR 637

Monday, June 20, 2011

11:15 a.m. – 12:15 p.m.

Chris Carson, PSP, CCM, PMP

Robert Kelly, Jr., PSP, CFCC, PMP


• Corporate Director of Project Controls, Alpha Corporation– Responsible for standards, processes, and procedures for a team of schedulers, analysts, and project

managers in multiple office locations, as well as analysis, work product, and testimony

– Developed and manages the in-house project controls training program at Alpha

• Certifications: – PSP (Planning & Scheduling Professional – AACEi)

– CCM (Certified Construction Manager - CMAA)

– PMP (Project Management Professional – PMI)

• University: University of Virginia, Mechanical Engineering, 1972

• Professional Field: 38 years of experience in Construction Management Services specializing in Scheduling, Schedule Analysis, Estimating, Claims

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Scheduling, Schedule Analysis, Estimating, Claims

• Active in AACEi (Association for the Advancement of Cost Estimating International)

– Author of Recommended Practices in Scheduling & Forensic Schedule Analysis RP

• Active in PMI (Project Management Institute) College of Scheduling

– Vice President of Scheduling Excellence

– Managing Director for SEI (Scheduling Excellence Initiative) writing Best Practices and Guidelines for Scheduling and Schedule Impact Analysis

– Serving on team writing Best Practices for Scheduling for GAO

• Active in CMAA (Construction Management Association of America)

– Served on committee revising Time Management Chapter of CMAA’s CM Standards of Practice

• Active in Planning Planet (global planning association)

– Chief Editor for US, writing Planner Users’ Guide, developing accreditation Guild for planners

• Something you don’t know about me: I’m a glider co-pilot, see picture


• Degree:– BA, English

• University:– The College of William & Mary, 1990

• Years of Experience:– 21 years experience, combined project management and consulting services; partnering

facilitation , neutral dispute resolution

• Professional Field:

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• Professional Field:– Construction project management, project controls, scheduling; vertical and horizontal

construction, projects $300k - $92m

– Claims evaluation and response; dispute resolution and litigation support

• Certifications: – PSP (Planning & Scheduling Professional – AACEi)

– CFCC (Certified Forensic Claims Consultant)

– PMP (Project Management Professional – PMI)

• Something you do not know about me:– Married to Lisa. Father to Emma Grace (7), Sarah Jane (4) and soon-to-arrive John Curtis (Kelly,

Sr.’s grand-children #2, #4 and #8)

USE OF A CLAIMS TRIAGE WORKSHOP TO CHOOSE AN ANALYSIS METHOD

• AACEI Recommended Practice 29R-03 “Forensic ScheduleAnalysis” properly notes that there are a number of factors toconsider in choosing a method of analysis in a time-relateddispute

• The presenters have developed a process that they havecalled a “Claims Triage” for use in evaluating every new

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called a “Claims Triage” for use in evaluating every newdispute resolution assignment, organized and guided by achecklist and procedures.


Why have a Claims Triage to Choose an Analysis Method?

• Variety of methods available – which is best?

• Broad consideration from multiple participants with different experiences

• Apply lessons learned

• Training and mentoring

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• Choice of methodology is carefully considered and documented for use in the

analysis, well before the analysis begins.


Claims Triage Process

• Process involves a team approach

• Commitment to RP 29R-03 Forensic Schedule Analysis, Section 5 “Choosing a

Method”

• Team assignments based on experience

• Importance of objective viewpoint during document management, review and

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• Importance of objective viewpoint during document management, review and

analysis

• Lead Consultant is assigned


Information Needed for the Triage Session

• Lead Consultant is responsible for coordination of triage meeting

• Structure and conduct of the meeting is dependent on information developed

prior to meeting

• See Checklist A “First Meeting Interview with Dispute Resolution Client” for

information necessary

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information necessary

– Project Facts

– Dispute Facts

– Legal Facts

– Source Documents and Data Validation

• Engagement and Triage Information: chicken or the egg?



• Project Facts

– parties/stakeholders

– project type and description

– project location

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– project location

– contract value

– bid, start, completion dates

– current project status – cost and schedule



• Dispute Facts

– an understanding of the dispute

– size of the dispute

– start of dispute

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– start of dispute

– duration of the dispute

– prior dispute communications

– current dispute documentation/tracking efforts



• Legal Facts

– Litigation calendar

– contract claims process

– prior claim communications

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– prior claim communications

– current status of claim

– any rebuttal arguments known at this time

– any risks from counterclaims



• Source Documents and Data Validation– contract

– plans and specifications

– project baseline schedule

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– schedule update

– as-built information and accuracy

– contemporaneous validation sources (daily field reports, time cards, etc)

– Detailed bid estimate

– Job Cost Reports

– Requests for Information

– Change Orders

– Internal client analyses or reports



• Tasking and Budgeting

– Timeline for performance of the analysis

– Interim deliverables

– Budgetary constraints

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– Budgetary constraints

– Methodology discussion

– Initial estimate of effort

– Client directive(s)


Expected Outcome from the Triage Session

• Eliminate potential methodologies

• Focused need on missing information

• Better-performance of final methodology selection

• Quality Control in process of methodology selection

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• Quality Control in process of methodology selection

• Confidence in methodology selection


The Triage Session

• Distribute information prior to Triage

– Documents acquired to date

– Summary of dispute

– Client-interview information

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– Client-interview information

– Other “First Meeting Interview with the DR Client” information

• The earlier the better

• Well-briefed team = more effective Triage


The Triage Session

• Review Project and Case Background

– Client overview

– Project summary

– Disputed issues summary

15


– Availability & legitimacy of baseline & updates

– Availability & legitimacy of documents


The Triage Session

• Open Floor to Q&A from Triage team

– Information validation

– Identification of conflicts

– New questions and perspectives

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– New questions and perspectives

– Identify missing information

– Guide for follow-up

• Now the Triage Team is ready to discuss the factors to

consider for the choice of methodology


The Triage Session:

Factors to Consider in Choosing an Analysis Methodology

• Contract Requirements

– Review the contract for stipulated method for forensic analysis or a method

for proving entitlement to time related compensation.

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for proving entitlement to time related compensation.

– Critical Path Methodology?

– Prospective or Retrospective: does specified methodology address either,

both or neither?

– Triage session must establish and discuss contract provisions


The Triage Session:


• Purpose of the Analysis

– “…quantify delay, determine causation, and assess responsibility for such

delay…”

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delay…”

– Assess financial consequences for delay

– Disruption impacts?


The Triage Session:


• Source Data and Reliability

– Certain methodologies cannot be performed without certain data

– Data set must be appropriate for method

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– Data set must be appropriate for method

– Reliability is as important as existence

– Data set must be consistent, complete, accurate

– Triage may establish need for further investigation of data existence and

reliability


The Triage Session:


• Size of the Dispute

– Cost of analysis must be commensurate with the risk to the client

– The Lead should attempt to understand what the negative risks and gains

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– The Lead should attempt to understand what the negative risks and gains

are to the client and case

– Will cost of methodology consume most of or exceed potential gain?

– Is direct negotiation without independent analysis more appropriate?

– The methodology chosen must be limited to one of those that can be done

inexpensively but is still appropriate for the situation.


The Triage Session:


• Complexity of the Dispute

– The Lead should have an understanding of both the Project and the

issues in dispute.

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– If the project is complex with large schedules and long project

durations, the analysis choice will likely be more limited

– Complexity can include the number and definition of interim, as well

as the need for specific technical background knowledge

– A decision by the Lead to withdraw could ensue

– The is one area where the lessons learned from the triage team can

provide very insightful feedback and raise concerns that might not be

obvious to individual analysts.


The Triage Session:


• Budget for Forensic Schedule Analysis

– The claims triage is an appropriate place to determine if the

budget allowed for analysis is sufficient

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budget allowed for analysis is sufficient

– It is one of the data points that should be collected from the

client

– The lead can direct the discussion to determine if the budget

seems reasonable

– It is important that the issue of approximate costs for analysis

on the discussion table.


The Triage Session:



– If there is any indication that the budget might be insufficient

for the task, now is the time to establish that concern.

23

for the task, now is the time to establish that concern.

– If the Team determines the Project is appropriate and there is a

legitimate and appropriate methodology, the Lead should open

the discussion about rough costs to perform the analysis, so he

or she is armed with an approximate range of costs for later

discussions with the client.


The Triage Session:


• Time Allowed for Analysis– The allowable time determined by the client will factor very much into the selection

of an appropriate methodology.

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of an appropriate methodology.

– The time frame should incorporate:

• document review

• data validation

• time for research

• meetings with the construction team for interviews

• verification of facts in dispute

• development of the analysis and associated edits

• Alternate Dispute Resolution (ADR) calendar

• Trial calendar (ID experts, expert report production, response, deposition, etc.)


The Triage Session:


• Expertise of the Analyst and Resources Available– During triage, Lead should address all expertise needs to develop the analysis and to

testify in the case

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testify in the case

– The triage Lead should develop an understanding of the technical support available

from the full company resources, and make some initial determinations about team

composition.


The Triage Session:


• Forum for Resolution and Audience– The triage lead will have discussed the forum for adjudication with the client prior to the

conduct of the triage work shop. It would have been inclusive in the answers to the “First

Meeting Interview with Dispute Resolution Client”.

26

Meeting Interview with Dispute Resolution Client”.

– We believe it’s appropriate to treat every analysis matter as ”going to trial” and prepare

accordingly. This establishes a presumption of a higher level of scrutiny accorded to our

selection and implementation of methodology.


The Triage Session:


• Legal or Procedural Requirements

– The Lead should be fully briefed by client counsel regarding venue of the

trier of fact.

27

trier of fact.

– Sound methodologies generally survive varying venues.

– Certain venues require atypical consideration


The Triage Session:


• Past History/Methods and What Method Opposition is Using

– Triage discusses any history with parties and methodologies

• Methodology

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• Methodology

• Technical competence

• Results

– Examine friend and foe history


The Triage Session:

Choosing an Analysis Methodology

• Discuss Elimination of Methodologies

– Immediate elimination due to Factors

– Transition from easy elimination to in-depth discussion to elimination

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– Transition from easy elimination to in-depth discussion to elimination


The Triage Session:


• Recommend Methodology

– Methodologies surviving elimination round

– General methodology type

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– General methodology type

– Specific implementation

– Challenges to implementation

– Steps to address challenges


Conclusion

• Document triage effort

• Empirical support for decision-making

• Application of lessons learned

• Targeted need for information

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• Targeted need for information

• Prepare for next meeting with client

• Efforts and resources: assignment

• Guided performance

• Effort confidence

• Training and mentoring

Practice Triage Session

Now, let’s perform a sample Triage

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The Triage Session


– General Contractor client – Design-Bid-Build delivery

– Construction of new high school


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• Foundation problems

• Slow shop drawing submittals

• Pre-engineered building problems

• Contractor production problems

• IT re-design issues

• Utility changes


The Triage Session


– Availability & legitimacy of baseline & updates

• Baseline approved

• Monthly updates produced, no response about approvals

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• Monthly updates produced, no response about approvals

– Availability & legitimacy of documents

• Daily field reports reasonably detailed

• Meeting minutes haphazard

• Correspondence file light

• RFI, Change Estimate and Change Order logs available

• Monthly invoices available

• Several TIAs submitted contemporaneously


• Schedule Log

Chron

OrderFile Name Start Date Data Date Early Finish

Activity

Count

Critical

Activities Cum Delay

Update Window Size

(cd)

Project Duration

(cd)

Remain. Time

(cd)Notes

6-Jul-09 15-Apr-09 15-Apr-09 26-Jul-10 578 29 0 N/A 467 467 baseline DC 2003

6-Jul-09 15-Apr-09 15-Apr-09 26-Jul-10580 83 0 N/A

467 467 revised baseline DC Hodges 03

16-Jul-08 15-Apr-09 16-Jul-09 10-Aug-10578 61

1092

482 390 Revised baseline (Zero Progress)

9-Mar-0915-Apr-09 15-Apr-09 26-Jul-10 571

50 0 N/A467 467 Baseline Revisions DC 03

115-Apr-09 15-Apr-09 15-Apr-09 26-Jul-10 571

50 0 N/A467 467 Baseline Final

DESIGN15-Apr-09 1-May-09 N/A

8 8

#VALUE! 16#VALUE!

Design Issues Schedule

2

19-Oct-0915-Apr-09

19-Oct-09 29-Sep-10571

112 65 171532 345 Update October 19, 2009

3

4-Dec-0915-Apr-09

4-Dec-09

25-Oct-10571

133

91 46558 325 Update December 04, 2009

35

3 25-Oct-10 133

3

4-Dec-09 15-Apr-09 4-Dec-09 9-Dec-10 571 221 136 0 603 370 Update December 04, 2009, with Glenwood

4

21-Jan-1015-Apr-09

21-Jan-10 15-Dec-10571

212 142 48609 328 January Update 2010

5 3-Mar-1015-Apr-09

3-Mar-10 27-Dec-10571

213

154 41621 299

February Update 2010

6 19-May-1015-Apr-09

19-May-10 27-Dec-10571

127

154 77621 222

May update 2010

7 2-Jul-1015-Apr-09

2-Jul-10 6-Dec-10571

134

133 44600 157

June Update 2010

8 28-Jul-1015-Apr-09

28-Jul-10 17-Dec-10571

185

144 26611 142

July Update 2010

IT15-Apr-09 28-Jul-10

14-Jan-11 577 185

172 0639 170

IT Claim with July Update

9 1-Oct-1015-Apr-09

1-Oct-10 10-Feb-11571

113

199 65534 266

September Update 2010

TANK15-Apr-09 3-Oct-10

10-Mar-11 576 114

227 2694 158

Day Tank Claim with Sept Update

10 3-Nov-1015-Apr-09

3-Nov-10 24-Feb-11571

82

213 31680 113

October Update 2010

11 10-Dec-1015-Apr-09

10-Dec-10 2-Mar-11571

62

219 37686 82

November Update 2010

12 15-Feb-1115-Apr-09

15-Feb-11 21-Feb-11571

18

210 67677 6

January Update 2011

13 18-Mar-1115-Apr-09

18-Mar-11 8-Apr-11571

6

256 31723 21


14 26-Apr-1115-Apr-09

26-Apr-11 17-May-11571

6

295 39762 21

March/April Update 2011


• Schedule Log

Chron

OrderFile Name Start Date Data Date Early Finish

Activity

Count

Critical

Activities Cum Delay

Update Window Size

(cd)

Project Duration

(cd)

Remain. Time

(cd)Notes

6-Jul-09 15-Apr-09 15-Apr-09 26-Jul-10 578 29 0 N/A 467 467 baseline DC 2003

6-Jul-09 15-Apr-09 15-Apr-09 26-Jul-10580 83 0 N/A

467 467 revised baseline DC Hodges 03

16-Jul-08 15-Apr-09 16-Jul-09 10-Aug-10578 61

1092

482 390 Revised baseline (Zero Progress)

9-Mar-0915-Apr-09 15-Apr-09 26-Jul-10 571

50 0 N/A467 467 Baseline Revisions DC 03

115-Apr-09 15-Apr-09 15-Apr-09 26-Jul-10 571

50 0 N/A467 467 Baseline Final

DESIGN15-Apr-09 1-May-09 N/A

8 8

#VALUE! 16#VALUE!

Design Issues Schedule

2

19-Oct-0915-Apr-09

19-Oct-09 29-Sep-10571

112 65 171532 345 Update October 19, 2009

3

4-Dec-0915-Apr-09

4-Dec-09

25-Oct-10571

133

91 46558 325 Update December 04, 2009

Note – Activity Count does not change within updates

36

3 25-Oct-10 133

3

4-Dec-09 15-Apr-09 4-Dec-09 9-Dec-10 571 221 136 0 603 370 Update December 04, 2009, with Glenwood

4

21-Jan-1015-Apr-09

21-Jan-10 15-Dec-10571

212 142 48609 328 January Update 2010

5 3-Mar-1015-Apr-09

3-Mar-10 27-Dec-10571

213

154 41621 299


6 19-May-1015-Apr-09

19-May-10 27-Dec-10571

127

154 77621 222

May update 2010

7 2-Jul-1015-Apr-09

2-Jul-10 6-Dec-10571

134

133 44600 157

June Update 2010

8 28-Jul-1015-Apr-09

28-Jul-10 17-Dec-10571

185

144 26611 142

July Update 2010

IT15-Apr-09 28-Jul-10

14-Jan-11 577 185

172 0639 170

IT Claim with July Update

9 1-Oct-1015-Apr-09

1-Oct-10 10-Feb-11571

113

199 65534 266

September Update 2010

TANK15-Apr-09 3-Oct-10

10-Mar-11 576 114

227 2694 158

Day Tank Claim with Sept Update

10 3-Nov-1015-Apr-09

3-Nov-10 24-Feb-11571

82

213 31680 113

October Update 2010

11 10-Dec-1015-Apr-09

10-Dec-10 2-Mar-11571

62

219 37686 82

November Update 2010

12 15-Feb-1115-Apr-09

15-Feb-11 21-Feb-11571

18

210 67677 6

January Update 2011

13 18-Mar-1115-Apr-09

18-Mar-11 8-Apr-11571

6

256 31723 21


14 26-Apr-1115-Apr-09

26-Apr-11 17-May-11571

6

295 39762 21

March/April Update 2011

Note – Activity Count does not change within updates


• Chart Cumulative Delays directly from Schedule Log

37


• Chart Cumulative Delays – Overlay known delay event timeframes

38


• Chart Cumulative Delays – Label known delay timeframes

39


• Chart Cumulative Delays

Period of possible concurrent submittal problems

40


• Chart Cumulative Delays – Note any general issues/concerns

41

Shows two schedules with same data date & different EF dates

Could be acceleration or mistake, but worthy of investigation during triage?


• Chart Cumulative Delays – Identify specific delay/acceleration concerns

No overall delay due to IT design

42


• Chart Cumulative Delays – Identify specific delay/acceleration concerns

Period of possible concurrent production problems

43



No overall delay due to IT design

Period of possible

concurrent submittal

Period of possible concurrent production problems

44

Shows two schedules with same data date & different EF dates

concurrent submittal

problems



– Only provides very simplified overview for discussion

– Can show if analysis will be dealing with simple delay

– Helps expose more complicated analysis needs

• Acceleration/mitigation

• Concurrency

• Disruption?

45


The Triage Session

• Open Floor to Q&A from Triage team

– Hold questions here for when we go through the specific

factors

46

• Now the Triage Team is ready to discuss the factors to

consider for the choice of methodology


The Triage Session:


• Contract Requirements

– Contract documents specify contemporaneous prospective TIAs

– Contract is silent on forensic analysis methodologies

47

– Contract is silent on forensic analysis methodologies

– Contract stipulates project duration

– Contract stipulates project schedule must run from NTP to CCD


The Triage Session:


• Purpose of the Analysis

– Quantify delays

– Determine causation

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– Determine causation

– Assess responsibility for delays

– Review concurrency – potential overlapping responsibilities for delay

– Used for negotiations


The Triage Session:


• Source Data and Reliability

– Schedules appear OK


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• Updates not approved or disapproved, but used for

contemporaneous project management

– Little information about project progress meetings

– Little correspondence from Contractor

– More correspondence from Owner but still light


The Triage Session:


• Size of the Dispute

– Claim entitlement believed by contractor

• $220,000

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• $220,000

– Liquidated Damages risk - $600/day – 300j days delay

• $180,000

– Swing of risk costs

• $400,000


The Triage Session:


• Complexity of the Dispute

– High school project – straightforward construction

– Complexity of issues

• Foundations problem – simple

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• Foundations problem – simple

• Pre-engineered building –may require some engineering

evaluation

• Submittals issue – simple

• Production issue – requires resource data

• IT redesign may require technical assistance

• Utilities changes - straightforward


The Triage Session:



– Contractor first reaction - doesn’t want to spend over $50,000

– Using $180/hour for Analyst

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– Using $180/hour for Analyst

• Supports 7 weeks at that maximum cost

• Reduce max by 3 weeks for meetings, contingency

• Budget permits ~4 weeks of analysis


The Triage Session:


• Time Allowed for Analysis

– Contractor wants analysis done in 4 weeks – 20 days – ready to

meet with Owner

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meet with Owner• 2 days - document review

• 1 day - data validation

• 8 days - time for research

• 1 day - meetings with the construction team for interviews

• 2 day - verification of facts in dispute

• 6 days - development of the analysis and associated edits


The Triage Session:


• Expertise of the Analyst and Resources Available

– Expert and team has experience in observational and modeled analyses

– No experience in subtractive modeling (sorry, Andrew)

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– No experience in subtractive modeling (sorry, Andrew)

– Workload is moderate, lead analyst and staff available


The Triage Session:


• Forum for Resolution and Audience

– Analysis designed for negotiation with Owner and Owner’s CM

– Informal meeting, no rules

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– Informal meeting, no rules

– Owner’s CM is knowledgeable about forensic analysis (OK, we know, just

take this on trust)

– Owner is generally fair if case can be proven, but bar for convincing Owner

is fairly high


The Triage Session:


• Legal or Procedural Requirements

– Moderate potential for need to go to litigation

– Contract calls for litigation, not arbitration

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– Contract calls for litigation, not arbitration

– Mediation may be first step in path to litigation


The Triage Session:


• Past History/Methods and What Method Opposition is Using

– Methodology

• CM uses forensic consultant who prefers additive modeling

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• CM uses forensic consultant who prefers additive modeling

– Technical competence

• CM’s consultant and CM historically have fairly low level of

competence in forensic analysis

• Owner has minimum level of technical competence

– Results

• CM’s consultant has weak litigation success history


The Triage Session:



– Lack of experience

• Eliminate MIP 3.8/3.9 Subtractive modeling (collapsed as-built)

• Questions

58

– How does negotiation venue affect choice?

• Can perform simpler analysis? How simple?

• Analysis must still be capable of expansion into litigation ready?

– Eliminate MIP 3.6 – Modeled additive single base (IAP)

» Ignores changing nature of critical path

» Cannot show concurrency

» Will likely show very different results than other methods

» Highly unlikely to prevail in court


The Triage Session:



– How does opposition consultant’s preference for additive modeling affect?

• More likely to choose additive modeling? - working in same

method

• Less likely to choose additive modeling? – prefer not to get into

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• Less likely to choose additive modeling? – prefer not to get into

methodology comparison arguments


The Triage Session:



– What about opposition’s weak history?

• Use of MIP 3.6 Modeled additive multi-base (Retro TIA)

– Eliminate modeled additive multiple base (MIP 3.7)

» Document availability and validation need similar to MIP 3.3/3.4 (CPA)

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» Document availability and validation need similar to MIP 3.3/3.4 (CPA)

» Cannot show concurrency or pacing

» Modeled approach more subjective than observational

» Increases challenges over observational approaches

» Takes more time and cost more than observational




– Methodologies surviving first elimination round

• MIP 3.1/3.2 – Observational static gross/periodic (APAB)?

• MIP 3.3/3.4 – Observational dynamic as-is/split (CPA)?

• MIP 3.5 – Observational dynamic recreated (Modified CPA)?

– General methodology type discussion

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– General methodology type discussion

• Unlikely to need to recreate updates since they were used

– Eliminate MIP 3.5

• Presence of usable/contemporaneous updates

– Eliminate MIP 3.1/3.2

• Activity count did not change in updates

– Eliminate MIP 3.4 – likely no logic changes – can still choose later


The Triage Session:



– Observational

• Specific implementation

– Choose MIP 3.3 – Observational dynamic as-is (CPA)

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– Choose MIP 3.3 – Observational dynamic as-is (CPA)

• Challenges to implementation– “To yield accurate results, critical aspects of the contemporaneous schedule updates used in

the analysis must be validated as accurate both in reported progress to date and in the

network’s representation of contemporaneous means and methods”

– “ The method is strengthened if it can be shown that the project participants considered or

used the contemporaneous schedules in constructing the project”

– “Cannot be implemented if contemporaneous schedule updates do not exist “

• Will need to validate the updates during implementation for both the as-built

and current as-planned condition

USE OF A CLAIMS TRIAGE WORKSHOP TO CHOOSE USE OF A CLAIMS TRIAGE WORKSHOP TO CHOOSE

AN ANALYSIS METHODAN ANALYSIS METHOD

CDR 637

Questions?



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