Michael Cuevas is a Partner in our Miami office. He is a registered Professional Engineer with more than 25 years of experience on complex and challenging projects. Michael comes from a family of carpenters, which he attributes to his familiarity with construction and structures. It was an easy and natural choice for Michael to gravitate towards structural engineering.
We spoke to him about his background, how he and his team drive change in the industry and what he enjoys doing outside of the office.
Tell me about your background.
I’m a civil and structural engineer who dedicated the first 15 years of my career to designing buildings such as hospitals, offices, schools, theaters, manufacturing facilities, and many other types of structures. Subsequently, I started the second phase of my career by becoming a forensic engineer, evaluating damage to existing buildings and structures. These evaluations have included damage due to design defects, construction defects, wind, earthquakes, floods, fires, explosions, construction activities, and vehicle impacts, among others. I have performed these forensic evaluations for the past 11 years in support of litigation, construction disputes, and insurance claims.
What do you think has been the reason for your success?
There are several reasons for my success, but the most important are:
Work Ethic – My parents are some of the hardest-working individuals I know. They instilled that work ethic in me through example. Working hard and giving an honest effort in everything you do is still very underrated. It is an important attribute for success and one that does not go unnoticed by clients.
Challenged and Competitive – I get bored easily, which makes me navigate to challenging work. Structural engineering and working in disputes where other experts are opposed to you in a high-stakes environment is very challenging.
How do you and your team drive change in your industry?
Our goal is to provide our clients with incredible value. We take the time at the beginning of an assignment to understand what questions we need to answer for our clients. Then, we try to go above and beyond to provide those answers by:
Putting in the work to gather information, assess, analyze, process, and conclude. If you cheat the process, you’ll most likely miss something and make a mistake.
Providing technical reports that are easily understood by all while having the technical information and rationale required to support our findings.
Overcommunicating. If a client calls us to ask a question or request an update, we have failed.
Being honest. Honesty is the best policy, especially when it seems that you will not benefit from it.
What was a project you were involved in that stood out to you / are you most proud of?
I worked on an $800M claim in Argentina early in my forensic career, where I was the only Spanish speaker. Initially, I was just one of the engineers on the team. Still, my role grew to one in which I was responsible for the team and the work product across all disciplines (mechanical, electrical, plumbing, civil, structural, cost estimating, and scheduling). It was a considerable challenge, fun, and a learning experience all at the same time.
What advice do you have for aspiring claims consultants?
At HKA, you’re often involved in multiple projects at once, and your team’s deliverables change constantly, depending on your client’s needs and the ongoing development of any review. Being organised is critical. I stick to the basics of project management by always understanding what we need to achieve and understanding your team’s strengths in each aspect. Open communications with your team members go a long way in forging good team dynamics and allow for early dedication to stumbling blocks that can be better managed. This allows for a less stressful environment for your team and better results for your client.
What is something about you that might surprise people?
I was the first person in my immediate and extended family ever to attempt to attend a college/university. It’s important to note that I have over 50 cousins! I placed more pressure on myself to graduate because I knew that if I succeeded, it would show my siblings and cousins that they could take a similar path.
What do you enjoy doing outside of work?
Staying healthy, running, cycling, and exercising are my passions. I also love to travel and most recently visited Colorado. I enjoyed spending time in beautiful country and mountains with my wife, hiking at the Garden of the Gods, visiting Red Rocks Amphitheater, and driving up Mount Evans, above the clouds.
Izel Hart is a Senior Consultant based in our Johannesburg office. She has over 15 years’ experience in project commercial management, contract management, commercial administration, contract drafting, tender evaluation and adjudication, operations forecasting, and commercial management.
We spoke to Izel about her background in claims management, the project she is most proud of, her passions outside of work and she gives advice to upcoming claims consultants.
Tell me about your background.
I started my career as an administration clerk for a well-known petroleum company. This was my first taste of the corporate world and the intricacy of project leadership. This position afforded me a unique perspective into all the so-called puzzle pieces a massive assessment requires before a win can be achieved.
My curiosity led me to be part of numerous greenfield projects across a broad spectrum of various industries, and I’ve been learning ever since.
What attracted you to your specialty?
No two projects are the same; the claims environment is constantly changing. It’s the one thing I enjoy the most. As the project parameters change, you must redirect your thoughts and your interpretation of what you know. My skills are continuously being put to the test. As a claims manager, you’re consistently developing your skills, which allows for growth, and I find this intriguing.
What was a project you were involved in that you are most proud of?
I was part of a dynamic team responsible for implementing a massive greenfield project for a new iron ore mine. This project was based in a very remote area with limited access to major infrastructure and posed a real challenge when it came to managing all the various contractor interfaces and their schedules. Our team managed to get the project up and running on time and within the budget constraints limiting contractor claims. This project was recognised as one of the most successful greenfields projects at its time and played a significant role in my career path and the drive I have as a consultant today.
Why is HKA a stand-out employer for you?
Our HKA team is very diverse; we have the top experts in both delay and quantum. HKA is very people driven with a lot of focus on upskilling its employees. HKA has a good culture and is renowned for its success in this industry.
What advice do you have for aspiring claims consultants?
At HKA, you’re often involved in multiple projects at once, and your team’s deliverables change constantly, depending on your client’s needs and the ongoing development of any review. Being organised is critical. I stick to the basics of project management by always understanding what we need to achieve and understanding your team’s strengths in each aspect. Open communications with your team members go a long way in forging good team dynamics and allow for early dedication to stumbling blocks that can be better managed. This allows for a less stressful environment for your team and better results for your client.
Is this career path what you had initially set out to do?
Not quite. As a teenager, I wanted to be involved in criminal investigations. Whilst that path was not taken, I do feel that the thing that made me tick, i.e., wanting to know why and how continues to drive me in this career path which, in a sense, always comes back to “investigations”.
What are your passions outside of work?
I enjoy just about anything that doesn’t involve sitting in one spot for too long. People are my passion. I love interacting with my loved ones, including my daughter, and close friends through weekend boat trips, pottery, art classes, or a good music festival. Of late we’ve had numerous music festivals with fantastic local artists, and I’m enjoying every one of them.
I love animals. I almost hoped I’d have a homestead or farm of my own. So, whilst I don’t have any farm animals, I have 6 wonderful dogs ranging from massive to small. I’ve rescued litters in the past, and hand-raised them.
HKA was delighted to welcome our newest colleagues to our diverse global team in July 2023
17th August 2023
A warm welcome to HKA. We are a diverse global team, and our culture is collaborative, honest, transparent, and high performing.
Thank you for joining HKA, a great place for our brilliant people to work, grow and play. Good luck to you and we hope you enjoy being yourself with us.
We understand joining a new company is exciting, yet can also be challenging. As you start a new chapter in your career with us at HKA, please look after your mental and physical health and well-being. Always reach out if you need any help.
Enjoy.
Kate Wood, Partner, Chief People Officer
Sara Alblooshi, Analyst Dubai, United Arab Emirates
Having graduated in 2020 with a bachelor’s degree in civil engineering from Higher Colleges of Technology (HCT), Sara now hopes to build upon her practical experience at HKA.
Sara has a well-rounded understanding of various engineering tasks, including quantity takeoff and surveying. Her previous work experience involved structure design and she is well-versed in a range of design programs including STAAD and Navisworks.
Ayesha Alhammadi, Analyst Dubai, United Arab Emirates
Ayesha graduated from Higher Colleges of Technology, Sharjah in 2016 with a bachelor’s degree in applied science in electronics engineering technology. She specialises in delay analyses.
Ayesha has previous experience as an electronics engineer and an assistant manager, where her responsibilities included liaising with clients to resolve issues and complaints, registering claims, and monitoring processes.
She looks forward to putting her strong analytical skills and attention to detail to use at HKA.
Nawaf Alhejji, Analyst Jeddah, Kingdom of Saudi Arabia
Nawaf is a civil engineer and a 2022 graduate of Imam Mohammed Ibn Saud Islamic University. He gained most of his experience working on the Security Forces Medical City Project and was also previously engaged on the King Abdullah International Gardens Project.
Nawaf is adept at editing project reports, plans, and construction schedules and is knowledgeable in design calculations, conducting material tests and analysis, reviewing, and auditing structural designs, and general project management support. He is a member of the Saudi Council of Engineers.
Meghan Bolinger, Associate Consultant Chicago, IL, USA
Meghan has joined HKA in the Chicago office as an Associate Consultant. She received a bachelor’s degree in accountancy and a Master of Science in Accountancy (MSA) from the University of Notre Dame. She returns as a full-time employee with HKA, following her internship with TM Financial Forensics last summer.
Kimberly Hepburn, Managing Consultant Dubai, United Arab Emirates
Kimberly recently relocated to Dubai, UAE, from the UK. She is a chartered quantity surveyor (MRICS) with nine years of client-facing professional experience.
She brings significant expertise from working on a range of major infrastructure and property investment projects in the UK, including High Speed 2, Thames Tideway and the Battersea Power Station redevelopment.
She is passionate about making a difference, adding value, and being a positive role model in the construction industry. Kim sits on the Chartered Surveyors Training Trust (CSTT) Board and is also a guest lecturer at her former university.
Timothy Hoying, Associate Consultant Minneapolis, MN, USA
Tim joins the Minneapolis office after an internship over the past year. He is a recent Iowa State University graduate with an MBA and a Mechanical Engineering degree. Tim has experience working in a variety of different industries including additive manufacturing, food manufacturing, and nonprofit management consulting.
Kwe Parker is a Baltimore, MD native who is currently based in the Washington, D.C. area. He has over 6 years of experience in the Government Contracts space, with a focus on Federal Acquisition Regulation (“FAR”) & Cost Accounting Standards (“CAS”) compliance, indirect rate modeling, Defense Federal Acquisition Regulation Supplement (“DFARS”) Business Systems, and M&A due diligence.
Magdalena Prus, Associate Technical Director London, UK
Magdalena is a Chartered Architect with over 12 years’ experience and holds a master’s degree in Construction Law and Dispute Resolution from King’s College, London. In her role as an Expert Witness and Forensic Architect, she has been involved in the analysis of a wide range of technical issues in adjudication and litigation proceedings in the UK. Her international experience includes working as part of a wider expert team on high-value claims in international arbitrations, relating to university projects, infrastructure and hospitals in the Middle East.
Liz Saunders, Global Equality, Diversity and Inclusion Manager London, UK
Liz Saunders joins our London office as Global Equality, Diversity and Inclusion Manager within our Global People team. Liz has a B.A. in Modern European Languages as well as over 25 years’ commercial experience in manufacturing and International Sales. After a 15-year hiatus from work to bring up her two children, she returns to support Chris Bernard, Partner, Global People Recruitment & Equality, Diversity & Inclusion and HKA with progressing on our global ED&I global journey.
Chia Tang, Business Support Administrator Brisbane, QLD, AUS
Chia joins the Asia Pacific Business Support team with extensive experience in various administrative and client management roles.
Prior to HKA, Chia worked in the logistics industry for a number of years where she attained skills in handling documents for compliance with local and international regulations.
Chia is also highly skilled in communicating and building influential relationships with internal and external stakeholders at all levels.
Ziad Zibaoui, Associate Consultant Phoenix, AZ, USA
Ziad recently graduated from the University of Arizona where he studied business economics and management information systems. He is thrilled to be a part of HKA, and he is excited for all the professional development and learning opportunities as he begins his career.
Alex Lee, Principal, was recognised as an Exceptional Expert in Financier Worldwide’s 2023 Power Players in Environmental, Social & Governance
10th August 2023
Environmental, Social & Governance (ESG) has become more prevalent in many companies across the world. Organisations across the globe are setting targets for ESG to combat the climate crisis, engage with local communities, improve diversity, protecting workers’ human rights, and focus on many more issues.
Alex Lee, Principal, was recognised as an Exceptional Expert in Fiancier Worldwide’s 2023 Power Players in ESG. In the publication, Alex shares his story through a brief Q&A and some of his engagement highlights.
In Financier Worldwide’s Power Player series, they highlight leading experts in their field who provide insight into themselves and their areas of expertise. Alex was recognised alongside four other experts in the ESG sector.
See the document below to read Alex’s recognition in this report.
HKA was delighted to welcome our newest colleagues to our diverse global team in June 2023
28th July 2023
Thank you for choosing to join our HKA global team. HKA is a great place for our brilliant people to work, grow and play. Your diversity, experience, and skills will make our company even better as we continuously collaborate and improve HKA together. Our culture is collaborative, honest, transparent, and high performing – we are one global team.
Joining a new company is a challenging and exciting time. Please look after your mental and physical health. Protecting your health is HKA’s number one priority and we are here to support you. We embrace hybrid working, we are enjoying meeting up in our offices together again and reaping the benefits of in-person time – looking forward to seeing you in one of our offices soon.
We hope you enjoy working with us in our global team and have time to develop as well as laugh together too.
Kate Wood, Partner, Chief People Officer
Kay Badenhuizen, Associate Consultant Phoenix, AZ, USA
Kay joins the Phoenix office after spending a year in Management Consulting since moving from her hometown in England. She graduated in May 2022 from the University of Arizona where she earned her BSBA’s in Business Economics and Entrepreneurship. She has experience working in a variety of different industries including financial services, real estate, and renewable energy.
Shilpa Bhatia, Senior Consultant Sydney, NSW, Australia
Shilpa is a skilled risk management and corporate governance professional with risk, assurance and compliance management experience across large infrastructure projects, providing advice and recommendations to senior executive and board levels. She has strong stakeholder management, shows highly effective planning, organizational and communication skills and applies a solutions-oriented approach to problem solving. She has delivered platforms, strategies, policies and advise for whole-of-government to support their strategic agenda. Shilpa has previously worked in the project risk management for Sydney Water and Sydney Metro.
Rob Chipanga is a chartered quantity surveyor with over 25 years of experience in the construction industry. He is experienced in the commercial delivery of projects and financial reporting, as well as managing profit & loss on projects for contractors and managing budgets for clients. Rob is also well-versed in full pre- and post-contract cost management/quantity surveying, procurement strategy, engagement of project consultants and contractors, contract advisory, financial disputes, claims resolution, and process and procedure formulation/implementation.
Rob has experience in managing the entire contractual cycle of projects, including contract negotiations, risk management, and cost control. He has successfully led commercial teams in delivering high-value, key complex construction and engineering projects across public and private sectors. Furthermore, Rob has worked on many large-scale infrastructure/built environment projects across Africa, Europe, and the Middle East.
Stuart Ells, Partner, Chief Growth Officer, EMEA London, UK
Riley Gora, Associate Consultant Minneapolis, MN, USA
Riley joins the Minneapolis office as a recent graduate from Iowa State University with a degree in industrial engineering. His previous experience has primarily been with manufacturing and systems in the aviation industry. Outside of work, he enjoys baseball and competing in powerlifting meets.
Luke Hester, Finance Business Partner, EMEA Warrington, UK
Luke is an ICAEW Chartered Accountant with 7 years’ experience in the finance industry. During his early career, Luke was an External Auditor with one of the Big 4 accounting firms, working on a variety of engagements across the North of England, and prior to joining HKA, held a Financial Reporting role at a global pharmaceutical company.
Andrea Lunt, Assistant Management Accountant, EMEA Warrington, UK
Andrea has 11 years’ experience of working within management accounts, across a wide range of industry sectors including, various manufacturers, as well as a graduate role within the motor industry at Arnold Clark. Having studied AAT level 2&3 which led to her BSc Hons degree in Accounting and Finance at Liverpool John Moore’s University, Andrea is currently studying with ACCA to become chartered.
Craig Mcpheator, Associate Director Abu Dhabi, United Arab Emirates
Craig has 26 years of quantity surveying and quantum-related experience in the construction and engineering industry. He has worked for main contractors, civil engineering contractors, and consultants in a dispute resolution capacity. He specialises in quantum-related services in relation to construction and engineering disputes. He joins HKA also marks his return to the Middle East, where he previously worked for 13 years.
Craig is a Member of the Chartered Institute of Arbitrators, an RICS Registered Expert Witness, and an Academy of Experts registered expert determiner.
Alma Melling, Transactional Finance Manager, EMEA Warrington, UK
Alma has 20 years’ experience in transactional finance, managing high volume and value transactional finance teams and started her career invoice processing. Alma enjoys new challenges in the workplace and expanding her knowledge of new industries across transactional finance and aims to focus on implementing standard processes within the departments functions.
Khabib Musashaykhov, Associate Consultant Washington, DC, USA
Khabib has three years of experience in asset management, with a focus in equity investments. On the qualitative side, his work has included maintaining client relationships and managing several teams of analysts. On the quantitative side, he has experience in market, industry, and equity research which gave him extensive exposure to accounting, valuation, financial analysis and modeling.
Khabib is currently on track to obtain his Certified Fraud Examiner (CFE) certification and enjoys his work in international arbitration and forensic accounting.
Cami Patel, Senior People Advisor, Asia Pacific Singapore
Cami has six years’ HR experience and joins in Singapore from London, where she worked as an HR Advisor for the Barbican Centre. Prior to this, Cami has worked in HR in London and Sydney in the public, private and not-for-profit sectors, supporting organisations in large scale projects and providing day to day people support.
Cristiana Roscoiu, Managing Consultant Abu Dhabi, United Arab Emirates
Cristiana is a legally qualified Civil Engineer with 20 years of experience in the engineering and construction industry. She is a Fellow of the Chartered Institute of Arbitrators, a listed Adjudicator on the FIDIC National List (ARIC) and a Member of the Royal Institution of Chartered Surveyors (Chartered Quantity Surveying and Construction).
Cristiana has extensive experience in project management, alternative dispute resolution, and quantum. She has provided strategic, contractual, and claims management services for major construction, civil engineering, and infrastructure projects across the world. During the last 18 years, she has worked on entire project life cycles and prepared and presented quantum and time claims in Dispute Adjudication Board and International Arbitration proceedings under ICC Rules.
Cristiana has worked for international companies focused on major infrastructure, preparing or defending valuable claims in Europe, South America, and the Middle East. In the last 3 years, she was appointed by international financial institutions as an international consultant expert.
Patrick Sanders, Partner, Chief Growth Officer, Americas Los Angeles, CA, USA
Alex Tilbrook, Associate Consultant Phoenix, AZ, USA
Alex is a recent University of Arizona graduate with a Finance degree. He has joined our Phoenix office as an Associate Consultant on the Forensic Accounting and Commercial Damages team. As a recent graduate, Alex is focused on gaining experience and exploring options regarding the direction of his career.
Jordan Tu, Recruiter, Asia Pacific Sydney, NSW, Australia
Jordan joins as a recruiter with over 5 years of recruiting experience. Prior to joining HKA, Jordan gained much of his experience from private organisations in the Finance, Legal, and Technology sectors. He is responsible for the end-to-end recruitment process, partnering with hiring managers to develop a strong candidate experience.
Raven Xiao, Associate Consultant Beijing, China
Raven Xiao has 3 years of experience in construction industry. She holds a master’s degree in structural engineering from The University of Hong Kong. Raven previously worked as a structural design engineer at China Railway Shanghai Design Institute where she was involved in building and transportation infrastructure projects.
Azeem Zakariya, Consultant Dubai, United Arab Emirates
Azeem is a qualified accountant and an affiliate of ACCA (Association of Certified Chartered Accountants).
Since graduating with First Class Honors in Accounting and Finance from Middlesex University, Dubai back in 2019, Azeem has worked on several cases and is well-versed in drafting expert witness reports for testifying experts within the DIFC and Dubai courts. He has experience in analysing fraudulent activity and developing risk assessment frameworks. He has also conducted AML and Compliance reviews for banks and other financial institutions based on Cabinet Decision No.10 of 2019 and its associated guidance and amendments.
HKA becomes a beacon of hope on Mandela Day at the Othandweni Family Care Centre
24th July 2023
In remembrance of what the late global icon Nelson Mandela stood for, July 18 is observed and regarded as a day of service to our communities. Our South Africa team spent the day at the Othandweni Family Care Centre in Soweto, a township in Southern Johannesburg, South Africa.
More than 90 vulnerable children, ranging from infants to 18 years old, call the centre home. In recent years, this centre has become dear to our hearts, and we have remained committed to continuing to serve the needs and wellness of the children.
To celebrate Mandela Day, we purchased two washing machines and three kettles for the centre. These were delivered to the centre as our team—led by Lihle Ntshangase, Marketing Manager, Africa—was preparing lunch for the children while they were at school. In celebration of our donation, the caregivers burst into song as they had long wished for these appliances.
On July 6, another delegation with Kelly Whitehead, Partner, People Business Partnering, Asia Pacific and EMEA, and Pam Arries, People Manager, Africa, visited the centre with donations from the Middle East office, groceries, and baby walkers. The donations included soccer jerseys that gave the children hope and a sense of pride.
“Being present here and personally seeing the conditions these children live under makes me understand how much of a big difference HKA makes in their lives. We have great respect for their caregivers for just being there for them,” said Kelly Whitehead, Partner, People Business Partnering, Asia Pacific and EMEA.
Thank you to all those who supported and delivered our donations to help improve the lives of the young and vulnerable.
Discusión sobre las diferencias entre las metodologías de análisis de demora más utilizadas.
Un análisis de demora retrospectivo debería por lo menos producir lo siguiente:
Identificación de las actividades que realmente causaron demora en la ruta crítica; y
Cuantificación de la demora crítica causada por cada actividad.
En teoría, la cantidad de la demora crítica causada por una actividad debería ser algo objetivo. Sin embargo, bien se reconoce que consultores de lados opuestos en una disputa, generalmente (siempre) llegan a conclusiones muy distintas respecto a las actividades que causaron demora y la cantidad de demora causada por cada una.
Consultores tienen a su disposición varias metodologías para preparar/presentar un análisis de demora retrospectivo, pero hay que estar pendiente que algunas pueden producir resultados erróneos. Es importante estar consciente de esto al evaluar un análisis de demora preparado por otros. En este informe se comparan tres métodos de análisis de demora que se usan con frecuencia:
Plan impactado (en inglés – Impacted As-Planned1 o IAP);
Análisis del impacto al plazo (en inglés – Time Impact Analysis o TIA); y
Plan comparado a los acontecimientos reales en periodos (en inglés – Planned v. As-Built o PAB).
Para evitar confusión con respecto a la nomenclatura, abajo se definen las tres metodologías de acuerdo a como se utilizan en este informe:
1) Plan impactado (IAP):
Esta metodología consiste en insertar “fragnets” al cronograma base del proyecto para medir el cambio a la fecha de finalización del proyecto (o a ciertos hitos).
Un fragnet es un modelo que consiste de una o más actividades que representa un cambio u otros impactos que no eran parte del plan original del proyecto.
El cronograma base del proyecto (en inglés – Baseline Schedule), es el cronograma que incluye todas las actividades necesarias para ejecutar el contrato original (sin cambios, adendas u otros impactos). Para el análisis, es preferible usar el cronograma base aprobado. En caso que no exista un cronograma formalmente aprobado, se debería utilizar el cronograma (antes de actualizar) que fue usado por las partes (contratista, supervisor o dueño) contemporáneamente para la ejecución del proyecto.
Utilizando este método de análisis, si después de insertar un fragnet (o más de uno) la fecha de finalización del cronograma base cambia (se atrasa), se concluye que la causa de la demora (a la fecha de finalización) fue el cambio representado por el fragnet.
Consultores tienen a su disposición varias metodologías para preparar/presentar un análisis de demora retrospectivo, pero hay que estar pendiente que algunas pueden producir resultados erróneos.
2) Análisis del impacto al plazo (TIA):
La principal diferencia entre la TIA y el IAP es que en la TIA, el fragnet es insertado a un cronograma actualizado, preferiblemente uno cercano a la fecha de inicio del evento de demora representado por el fragnet. Como en el caso del análisis IAP, si la fecha de finalización del proyecto cambia (se atrasa) después de haber insertado un fragnet, se concluye que el cambio o impacto representado por el fragnet es la causa de la demora.
A continuación, se demuestra en forma gráfica, un ejemplo simple de las metodologías IAP y TIA.
Plan base (IAP)/Plan actualizado (TIA):
En este ejemplo, el cronograma del plan base/plan actualizado tiene una ruta crítica a través de las actividades A, B y D y un plazo de 20 días.
Inserción del fragnet: Fragnet X (3 días) representa el cambio que tardo 3 días y que fue ejecutado después de la actividad B y antes de la actividad D.
En este ejemplo, la fecha de finalización se atrasó 3 días. La causa de la demora es el cambio o impacto generado por el Fragnet X.
3) Plan comparado a los acontecimientos reales – en periodos (PAB):
El método de análisis PAB compara el progreso que se tenía previsto según el cronograma con el progreso real, evaluando todos los cambios a la ruta crítica (la ruta crítica siendo algo dinámico) en forma cronológica y cumulativa. Como en el caso de la IAP/TIA, es preferible usar un cronograma aprobado, pero si tal no existe, entonces se debería usar el cronograma usado para ejecutar la construcción.
El progreso real se puede establecer usando varios documentos incluyendo: los cronogramas actualizados, informes diarios/semanales/mensuales, y correspondencias. Cuando se introducen cambios significativos en el plan de ejecución que se incluyen en el cronograma actualizado (todo cambio significativo en el plan de ejecución se debe incluir en el cronograma actualizado), se debe empezar la comparación de nuevo – así dividiendo el análisis total en distintos periodos de análisis. Es necesario comparar el progreso real con el plan contemporáneo.
Hay variaciones en los métodos descritos anteriormente.
AACE INTERNATIONAL – RECOMMENDED PRACTICE NO. 29R03, FORENSIC SCHEDULE ANALYSIS (RP 29R-03):
El RP 29R-03 separa las metodologías de análisis de retraso retrospectivo en dos categorías, (1) Observacional y (2) Modelos (Aditiva y Sustractiva). Los métodos Observacionales son variaciones del PAB y los Modelos Aditivos son variaciones del IAP y el TIA. El método Modelo Sustractivo no se utiliza con frecuencia.
El RP 29R-03 no recomienda el uso de un método sobre otro – solamente describe los distintos métodos.
SOCIETY OF CONSTRUCTION LAW DELAY AND DISRUPTION PROTOCOL – 2A EDITION (PROTOCOLO SCL):
El Protocolo SCL identifica 6 métodos de análisis. Los tres métodos incluidos en este documento se identifican y describen en el Protocolo SCL.
La 1A Edición del Protocolo SCL recomendaba el uso de cierto método de análisis para situaciones retrospectivas, pero tal recomendación no existe en la 2ª Edición (corriente).
Problemas con los métodos modelados (IAP and TIA):
Hay dos situaciones en las que los métodos de análisis que usan modelos, el IAP y la TIA, pueden producir resultados erróneos:
Estado real al comienzo del impacto – La diferencia entre el progreso planeado y el real en el plazo entre la fecha de comienzo del cronograma base o de la actualización en la que se insertó el fragnet y el comienzo del impacto (evento que representa el fragnet) no se considera en los métodos modelados, y
El progreso real durante la ejecución del fragnet no se considera en los métodos modelados.
1) Estado real al comienzo del impacto:
Los análisis en que se usan fragnets, el IAP o la TIA, pueden producir resultados inexactos si no se toma en cuenta el estado de construcción al comienzo del evento de demora. En el tiempo transcurrido entre la fecha de comienzo del cronograma base (IAP) o de la actualización (TIA) y el inicio del evento de demora, es muy probable que la construcción no ha progresado precisamente como predecía el cronograma base (IAP) o el cronograma actualizado (TIA).
El RP 29R-03 reconoce esta deficiencia cuando indica que “[a]cuarcy of the duration of the critical path impact for any given delay event degrades in proportion to the cronological distance of the delay event from the data date of the Schedule” (traducción: precisión del plazo del impacto a la ruta crítica para cualquier evento de demora disminuye en proporción a la distancia cronológica del evento de demora a la fecha de corte del cronograma). No solo la precisión del plazo se disminuye, sino que también podría resultar atribuyendo una demora crítica a una actividad que no es crítica en el momento del evento de la demora.
Este concepto se puede demostrar con el ejemplo del IAP y la TIA utilizado anteriormente:
Plan base (IAP) / Plan Actualizado (TIA)
Considere el impacto del fragnet si todo el trabajo se realizó como estaba previsto, excepto por la actividad C que comenzó 6 días tarde.
Estado en el día 15:
En este caso (en el día 15 después de la fecha del comienzo del cronograma) la inserción del Fragnet X no tendría impacto a la fecha de finalización:
La demora crítica en este caso sería de 4 días debido al retraso de 6 días en el inicio de la actividad C (2 días de holgura).
Fragnet X no tiene impacto – solamente consume la holgura creada por la demora en el inicio de la actividad C.
Recientemente, en un arbitraje del ICC, un consultor presentó un análisis IAP en el que concluía que el reemplazo de un equipo importante en una planta se había demorado 6 meses (hito con penalidades) porque el dueño de la planta no permitió el paro del equipo existente para permitir el reemplazo. Debido a que la planta estaba funcionando, el dueño tenía que minimizar el tiempo de inactividad (desde el paro del equipo existente hasta la puesta en marcha del equipo nuevo). Las actividades relacionadas a este equipo se habían programado iniciar en junio lo cual incluía fundaciones, otras obras civiles y actividades mecánicas preliminares que debían completarse antes del paro del equipo existente lo cual estaba programado para noviembre – un plazo de 5 meses (junio a noviembre). En el análisis, el fragnet que representaba el paro del equipo existente fue insertado con una fecha de inicio en mayo del siguiente año, lo cual resultó en un retraso crítico de aproximadamente 6 meses (noviembre a mayo del año siguiente). Los 6 meses de retraso fueron atribuidos al dueño por demorar el paro.
Lo que el análisis no toma en cuenta es lo ocurrido entre junio (comienzo planeado) y mayo del año siguiente. Recién en abril fue que el dueño permitió que se iniciara el paro en el mes de mayo porque no fue hasta entonces que el contratista estaba por terminar los trabajos preliminares que tenían que haberse terminado antes del paro. Las actualizaciones mensuales del cronograma mostraban que los trabajos preliminares se demoraban por causas no atribuibles al dueño.
El dueño no causó la demora crítica de 6 meses. Sin embargo, la cantidad de páginas con terminología técnica y gráficos con barras y flechas creadas con programas electrónicos sofisticados describiendo y defendiendo la metodología IAP que estaba incluida en los “procedimientos recomendados” (Recomended Practice…) de la AACE Internacional resultaría en confundir a los árbitros.
En este caso la aplicación de la metodología fue correcta, pero los resultados no acertaban con la causa real de la demora crítica. El problema fue que no se tomó en cuenta lo que ocurrió entre la fecha del inicio de las actividades del cronograma base (fecha de corte) y el inicio del fragnet (modelo).
2) El Modelo:
En análisis retrospectivos, deberían existir los datos de los acontecimientos reales. Si estos existen, ¿cuál es el propósito de crear un modelo?
Esto es análogo a una situación típica en la que el contratista entrega una propuesta para costos de trabajos extra (no incluidos en el alcance original) que no se habían realizado al presentar la propuesta. La propuesta del contratista representa un plan o modelo de lo que él piensa que va a tomar para ejecutar el trabajo. Por ejemplo, si el contratista piensa que el cambio requiere 10 trabajadores por 10 días entonces prepara su propuesta a base de ese modelo. Si el dueño acepta la propuesta, y se ejecuta una orden de cambio, entonces no importa si el trabajo en realidad requirió 8 trabajadores por 8 días o 12 trabajadores por 12 días: se aplicará la orden de cambio ejecutada.
Por otro lado, si no hubo un acuerdo antes de haberse ejecutado el trabajo, no tiene sentido volver a la propuesta o crear un modelo. Si se conocen los datos reales, entonces la cantidad real de trabajadores y el plazo que realmente trabajaron en el cambio se debe usar para el costo del cambio y el tiempo.
Problemas con el método Observacional (PAB):
El principal problema con el método de análisis PAB es que generalmente consume más tiempo que los métodos modelados. Mientras más detalle se considera en el análisis, más preciso va a ser el análisis.
RECOMENDACIONES
El protocolo SCL describe el TIA (análisis de fragnet) como el “procedimiento recomendado” (recommended procedure) que debe seguirse para un “análisis contemporáneo de demora” (contemporaneous analysis of delay). Ni el protocolo SCL ni el AACEi recomiendan el TIA como el método preferido en situaciones retrospectivas. El protocolo de SCL indica “después de la finalización de las obras” (after the completion of the Works) el TIA “puede no ser apropiado” (may no longer be appropriate).
Hay dos situaciones en las que los métodos de análisis que usan modelos, el IAP y la TIA pueden producir resultados erróneos:
Estado real al comienzo del impacto – La diferencia entre el progreso planeado y el real en el plazo entre la fecha de comienzo del cronograma base o de la actualización en la que se insertó el fragnet y el comienzo del impacto (evento que representa el fragnet) no se considera en los métodos modelados, y
El progreso real durante la ejecución del fragnet no se considera en los métodos modelados.
Para remediar la primera situación hay que considerar los acontecimientos reales durante el plazo del comienzo del cronograma (base para el IAP y actualizado para el TIA) hasta el comienzo del fragnet (evento de demora).
Para remediar la segunda situación se debe considerar los acontecimientos reales durante la ejecución de las actividades del fragnet y las otras actividades que se ejecutan contemporáneamente.
Si la forma de remediar las posibles deficiencias de los métodos modelados, el IAP y el TIA, es considerar los datos reales antes y durante el período del fragnet, entonces es preferible usar el método PAB.
En la mayoría de los casos, el aumento de precisión del PAB justificaría el tiempo adicional requerido en relación a los métodos modelados.
Cualquiera de los tres métodos, IAP, TIA, PAB (1) identifican las actividades que realmente causaron la demora a la ruta crítica, y (2) cuantifican la demora crítica causada por cada una de las actividades, con tal que los datos reales se usen para complementar el IAP y la TIA.
Sobre el autor
John H. McTyre tiene más de 35 años de experiencia en proyectos de construcción.
Durante los primeros 10 años, John ha trabajado en proyectos con empresas de construcción sirviendo de superintendente y gerente de obras. También ha sido representante del dueño en otros proyectos. Los siguientes 25 años ha preparado y analizado reclamos incluyendo reclamos de demoras, costos de demoras, costos relacionados al detrimento de productividad y evaluación/costo de trabajos adicionales. Ha trabajado en plantas eléctricas (hidroeléctricas, parques eólicos, de hidrocarburos, etc.); infraestructuras (carreteras, puentes, aeropuertos, puertos, metros, líneas de transmisión, etc.); petróleo y gas (plantas de distribución/licuefacción/regasificación de gas, cañería, refinadoras, etc.); edificios (oficinas, estadios, residencias, teatros, universidades, etc.); centros de datos; industriales (plantas de bioetanol, producción de papel, plásticos, etc.).
Los clientes incluyen contratistas, dueños, subcontratistas, ingenieros, etc.
El Sr. McTyre ha hecho presentaciones de perito en arbitrajes (ICC, AAA, y CCL), cortes (federales, de las fuerzas armadas, estatales) y en mediaciones. Ha hecho presentaciones de perito en inglés y español.
Footnotes
1 Plan impactado (IAP) es usado con mucha frecuencia en Latino América.
HKA was delighted to welcome our newest colleagues to our diverse global team in April and May 2023
21st June 2023
Thank you for choosing to join our HKA global team. HKA is a great place for our brilliant people to work, grow and play. Your diversity, experience, and skills will make our company even better as we continuously collaborate and improve HKA together. Our culture is collaborative, honest, transparent, and high performing – we are one global team.
Joining a new company is a challenging and exciting time. Please look after your mental and physical health. Protecting your health is HKA’s number one priority and we are here to support you. We embrace hybrid working, we are enjoying meeting up in our offices together again and reaping the benefits of in-person time – looking forward to seeing you in one of our offices soon.
We hope you enjoy working with us in our global team and have time to develop as well as laugh together too.
Kate Wood, Partner, Chief People Officer
Jean-Philippe Andanson, Senior Contract Manager Paris, France
Jean-Philippe has a Bachelor’s Degree in Civil Engineering and has 15 years of experience in the preparation, negotiation and management of contracts in the energy, gas, transportation and mining industries. He has been involved in the early engineering phases of projects through to the closing of contracts and any associated disputes, and also has extensive experience in contract management and dispute avoidance. He supports and guides engineers in contract management, maintaining overall consistency and ensuring the success of projects.
Yousef Benghalia, Managing Consultant Glasgow, UK
Yousef is an experienced quantity surveyor with 10 years of experience in the construction industry and has acted as a senior quantity surveyor on a range of projects on behalf of various main contractors. Working across oil & gas, nuclear, and rail sectors, Yousef has developed a command of pre and post-contract commercial management through assignments to significant projects in highly regulated industries and possesses master’s level education to bring theory and practice together. Able to take charge of complex commercial workloads, he has also demonstrated good financial acumen in the management of projects.
Wintress Cloud, Senior Associate Consultant Houston, TX, USA
Wintress has 7 years of collective construction industry experience. Her background includes dissecting the scope of complex capital projects utilizing advanced work packaging methodologies and project controls. Over the years, she has interfaced directly with the project team and site personnel during field assignments. She enjoys getting exposure to multiple projects, excels in collaborative work environments, and is receptive to development opportunities.
Terry Feng, Managing Consultant Dubai, United Arab Emirates
Terry has 10 years of project control and delivery experience in the construction industry, working on many large-scale projects.
His experience includes a vast number of high-profile construction projects in the UAE, focusing on buildings, access roads, and bridges. Terry has a BEng in civil engineering and an MSc in Commercial Management and Quantity Surveying. In addition, he also holds a Level-One Constructor Certificate issued by the Ministry of Housing and Urban-Rural Development of China (MOHURD).
Likaa Ghaddar, Managing Consultant Dubai, United Arab Emirates
Likaa Ghaddar is a skilled planning engineer with eleven years of experience in project planning and forensic delay analysis within the engineering and construction industries.
Likaa has been engaged in many Middle East projects across the residential, oil and gas and commercial sectors, specialising in baseline program development, progress updates and monitoring, resource and cost loading, and delay analysis.
Likaa holds an MSc in engineering management and a BE in industrial engineering and CST credentials from AACE International.
Rosalie Hollands, Associate Director London, UK
Rosalie is a Chartered Quantity Surveyor with over 10 years of experience in the construction industry. Rosalie has supported clients on national and international projects, from minor public realm works to new builds and major conversations with budgets exceeding £170 million. She has extensive experience in collaborative working with large client and construction teams. She has been responsible for administering and reporting project progress from conception to handover, ensuring key deadlines are met. In addition to her professional role, Rosalie is undertaking an MSc in Construction Law & Dispute Resolution at King’s College London, with completion expected in September 2024.
Rosalie has worked alongside experts, assisting with the quantum analysis, evaluation of losses, and preparing and drafting reports. She has experience in various forms of dispute resolution, including mediation, domestic UK adjudication and international arbitration.
Pamela Kahwajy joins HKA as a consultant with a civil engineering and project management background. During her studies, she worked as a structural design engineer but began her career in infrastructure advisory. Prior to joining HKA, Pamela gained experience in the private and public sectors. She has experience in risk management and strategic risk advisory across both the water and transport infrastructure sectors.
Melissa Kiser, Implementation Consultant Las Vegas, NV, USA
Melissa Kiser has 10 years of experience in the aviation industry. Most of her career has been spent administering project control systems, specifically PCM, P6, and PMWeb. She is an avid volleyball player, a travel enthusiast, and an animal lover. She joins the Las Vegas office as Implementation Consultant.
Morgan Kung, Consultant Hong Kong, China
Morgan Kung is a Consultant within the Quantum team based in our Hong Kong office with over 5 years of experience in the construction industry. She has a bachelor’s degree in quantity surveying from the University of Reading, UK. Morgan specialises in quantum analysis and has worked alongside experts to provide quantum assistance in preparing expert witness reports as well as audit services to various institutions. She has been involved in numerous projects that required a broad range of experience, such as pre-contract tendering, procurement, tender analysis, cost control and management and post-contract administration.
Cathy Le, Executive Assistant Philadelphia, PA, USA
Cathy is a Philadelphia native who graduated from Temple University. Her career background is quite diverse; she is a Pennsylvania licensed realtor, and she gained extensive administrative experience as a Senior Administrator/Executive Assistant at URBN Inc. for over 10 years before moving over to a Post-Production Supply Chain Senior Coordinator role where she spent over 5 years learning the ins and outs of the retail supply chain business. Prior to her start at HKA, her most recent position was with a home furnishings manufacturer in Delaware as a Finished Goods/Raw Materials Import Buyer. She joins the Philadelphia office as Executive Assistant.
Lukas Leuthold, Manager San Francisco, CA, USA
Lukas joins HKA’s San Francisco office after a sabbatical exploring the American West by road, from the Arctic Ocean to the Sonoran Desert. He previously worked in external financial audit and in managing and accounting for construction and information systems projects in California, Switzerland and Uganda. Lukas studied at Haverford College and Santa Clara University. He leads the SF chapter of the ACFE.
Alexia has 5 years of experience in the construction industry. She is rejoining HKA as a full-time employee after an internship last fall. She joins HKA in the Montreal office.
Anton Ma, Lead Consultant Sydney, NSW, Australia
With over 20 years’ of experience in the Construction Industry, Anton joins HKA as a Lead Consultant in the IPS team. As a Chartered Professional Engineer, he has undertaken various roles in mechanical contracting, including engineering design, estimating, commissioning, project management and BIM coordination. During the past 8 years, his role focused on estimating and cost management within an extensive range of sectors including infrastructure, defense, hospitals, retail complexes, data centers, commercial and residential towers.
Erin Sheth, Senior Associate Consultant New York, NY, USA
Erin has over seven years of experience in forensic accounting and litigation consulting. She has worked on a number of matters, including business interruption, fraud investigations, and FCPA investigations. She began her litigation consulting career in insurance archaeology and complex insurance claims cases. Erin enjoys conducting both data analysis and investigative research to provide support to a variety of projects.
Saif Sohail, Consultant Dubai, United Arab Emirates
Saif has three years of experience as a forensic accountant, specialising in conducting investigations and working on disputes for clients primarily in the Middle East. Saif’s professional experience includes professional services and start-ups, and he has worked across a diverse range of sectors, including retail, FMCG, energy, utilities, oil & gas, NGO, fintech, and health-tech.
Saif holds an MSc in Finance and Accounting from Imperial College London and is currently finishing his accounting qualifications.
Nitheesh Valappil, Managing Consultant Dubai, United Arab Emirates
Nitheesh is a qualified accountant with over seven years of professional consulting experience, predominantly in forensics.
During this time, he has contributed to numerous dispute resolution cases, providing critical assistance to experts in litigation and arbitration matters. Nitheesh has a BCom degree in International Business and is a member of The American Institute of Certified Public Accountants, Chartered Accountants Australia and New Zealand, and the Association of Certified Fraud Examiners
Tracy Doyle is a Partner based out of our Philadelphia office. She recounted her background and path into the construction industry before starting at HKA 15 years ago, what inspires her, and her typical day in her role, as well as voicing her support for the growing number of women in the industry.
Tell me about your background.
When I graduated college with a degree in economics, I had virtually no experience or connection with the construction industry. The learning curve was quite steep – challenging but always interesting.
I’ve always had a business development focus, though I have had the chance to work on claims, provide input on client advisory matters as well as partnering and training.
In my previous firm, I wore many hats as the firm was quite small, so I had the chance to lead various aspects of BD such as marketing, proposals, negotiating contracts, PR, as well as face-to-face client development. During that time, our small BD team grew to a team of 6.
I have had a focus in claims and expert consulting services, and have worked in many market sectors including infrastructure, energy, and government contracting. I have held positions in several industry associations including the American Bar Association, American Road and Transportation Builders Association, and the International Bar Association.
What inspires you in your role?
There are lots of things that inspire me, so in no order or fashion:
The people that I work with. This is probably the standard answer, but it is true because it is what I sell. If you do not have top talent who are motivated, smart, like-minded people to work with, it makes your job harder to do. My job is easy in the sense that we have the top talent in the business.
My second motivating factor is the Business of Construction. I am always fascinated with how construction impacts the world we live and work in. Travelling a lot with work has enabled me to see how the world is changing and how the work we do every day can have an impact on the world we live in.
Every client project we chase is different and everything from the project to the city to the stakeholders involved is different. I believe you need to constantly challenge yourself so as not to become complacent.
Starting in the construction industry in the 1980’s inspired me to set a positive image for the growing number of women in the business. I did not see the fact that there were so few women in construction as a roadblock; rather I saw it as an opportunity to stand out amongst the crowd. I continue to be inspired by the growing number of brilliant women in HKA and our industry.
Describe a typical day in your role.
There is no such thing as a typical day in my job and I really like that. I believe to do this job well, you need to be able to juggle a lot of balls. With Frank [Giunta] and Toby [Hunt]’s guidance, there is now a more focused and organized approach to achieving the objectives we set out for global, regional, and local initiatives.
I lead the global rail and rolling stock initiative. My team is based on several continents, we meet monthly, and strategize to pursue and win work in the global rail, transit and rolling stock market.
I also lead our business development efforts to continue to grow our business in Canada. This has been an extremely rewarding few years. When I assumed a Canada focus four years ago, we had less than 8 people in one office. Today we number more than 45 in four offices. HKA is known as a leading consultancy in Canada. This year, we achieved Platinum Status at the Top Projects Awards Dinner, indicating our work on many of Canada’s Top Infrastructure projects in country.
I also participate in the International Arbitration initiative, led by Howard Gendler. This is important to me as I am regularly fielding requests for experts on international arbitration matters requiring Spanish speakers in Latin America.
What do you think has been the reason for your success?
I enjoy my job and work hard to be successful. As I have previously stated, my key motivator is the team I work with. As we move forward with our new owner, PAI Partners, I remain motivated to drive success for the team at HKA as I deeply value what the HKA brand stands for.
In Business Development, it goes without saying that you do a lot of traveling. What city has been your favorite to travel to and why?
London, I love the multi-cultural aspect and the history of the city. It’s an easy city to navigate and enjoy all that it has to offer.
You have been with Hill International, and now HKA, for over 15 years in total. What has kept you with the organization for so long?
The people (especially Frank Giunta, who I directly report to), the challenges, and the chance to help build the best brand in the business.
Getting to know you. What are your interests outside of work?
I am a passionate sports and Chelsea football fan. I had always wanted to see a Chelsea game at home. So, in the fall pre-Covid, I took my sister, a die-hard Liverpool fan, to the Chelsea v. Liverpool game. Though we lost 1-0, it was a sporting highlight for me!
As first published in the Commercial Dispute Resolution Magazine as a part of their Expert View series.
Peter Caillard asks why road construction projects suffer from the same disputes time and time again, and what can be done to straighten out the bends?
Building roads for the betterment of transportation links remains a cornerstone of the economic growth strategies of many developed and developing nations. Road construction can be a complicated endeavour and every project is unique, but with thousands of years of experience it might be expected that the construction industry would have perfected its technique by now. However, disputes continue to plague the process at all stages from concept to completion and, moreover, it appears to be the same issues that repeatedly lead the parties into disagreement.
Top 16 causes of disputes according to HKA’s CRUX Insight Reports since 2018
HKA has been monitoring the causes of disputes through its CRUX programme since 2018. CRUX is an integrated research programme which provides insights into dispute causation on major engineering and construction capital projects around the world. Year-by-year data shows the common causal patterns in disputes across a wide range of disciplines and industries. Interrogation of this data helps us to understand which dispute issues are the most prevalent.
Using CRUX, the top 16 issues ranked by the number of cases in which each issue was cited as a matter of dispute in a highways project were as follows:
Rank
Issue
Proportion of disputes where this issue was a cause
1
Change in scope
42%
2
Unforeseen conditions
32%
3
Design incorrect
29%
4
Access late or restricted
26%
5
Contract interpretation issues
24%
6
Design incomplete
23%
7
Contract management/administration
21%
8
Design issued late
19%
9
Sub-contractor/supplier management issues
18%
10
Cashflow and payment issues
16%
11
Spurious claims
16%
12
Adverse weather conditions
16%
13
Tender or estimating errors
14%
14
Late approvals
14%
15
Skills and experience issues
14%
16
Deficient workmanship
13%
It is notable that three of the top eight causal issues relate to design and, if combined, they would top the table. In all cases these issues led to claims for additional time or cost.
These figures represent accumulated data, but a year-by-year breakdown shows a consistent pattern over time, with the same issues continuing to dominate the rankings.
“I have given further consideration to the top five issues to identify why they remain so prevalent and to review what actions might be taken either to avoid their occurrence or mitigate their impact.”
Key triggers in Change in Scope
A change in scope can be triggered by many factors including change of strategy or priorities by the owner, unexpected conditions encountered on site, value engineering initiatives, and so on. Scope changes require careful management as even a seemingly minor change may impact upon other parts of the design, construction or construction sequencing. Revised designs must be prepared, checked, approved, priced and issued against a ticking clock but, all too frequently, changes are rushed to avoid delays.
Disputes sometimes arise through scope growth as much as an actual change. On a design-build project, this may result from amendments made between a preliminary design (perhaps at a ‘Request for Proposal’ (RFP) stage) and a final design (the ‘Issued for Construction’ (IFC) stage). If a contractor has agreed a price at RFP stage, its ability to recover additional costs for subsequent changes may be contractually restricted, leading to dispute with either the owner or the contractor’s designer (based on the scope growth being arguably beyond what might be reasonably be considered normal design development). Equally, arguments around change of scope between a contractor and its designer may focus on whether the designer’s RFP designs contained sufficient detail for the constructor to price with reasonable accuracy. It is in all the parties’ interests to have fully defined from the outset what is to be expected in design packages at each stage of submission. From the designer’s perspective, the best preventative approach is to apply thorough checking procedures to minimise the risk of errors and omissions.
Unforeseen changes in road construction projects
Usually relating to conditions beneath ground, unforeseen conditions can encompass both natural geology and man-made obstructions or contamination. These continue to bedevil construction projects. The expansive nature of a linear transportation project such as a road or railway, potentially extending for tens of kilometres or more, requires accurate information about soils and geology on a completely different magnitude to a discrete building project on an isolated footprint. For roads, ground investigation tends to focus on investigatory boreholes at the locations of bridges and other structures to facilitate foundation design, with a reduced intensity of survey in between being sufficient to determine soil type for earthworks, understand groundwater regimes, and so on. This requires some interpolation between locations, but where the conditions are intensely variable, interpolation between boreholes may be insufficiently accurate for design purposes. If the ground conditions actually encountered during construction differ from those predicted, resulting in delays and extra costs, a claim may well follow.
Investment in early site investigation is rarely wasted. For most road schemes it represents just a tiny fraction of the overall project cost. Without good knowledge of the sub-soils, the designer is blind.
Owners and contractors can and do undertake risk analyses through which the chances and consequences of unforeseen conditions can be priced. But there is no substitute for thorough understanding of what lies beneath your feet.
Responsibility for establishing ground conditions should be clear under the contract. Assigning responsibility (and risk) to the contractor for such matters might sound like a smart move to an owner eager to get to site quickly and cheaply, but it is likely that the contractor’s tender prices will be inflated to cover the risk it thereby assumes. Minimising that risk by conducting comprehensive pre-tender surveys (or indeed, participating in risk-sharing), will encourage much keener pricing.
Road design errors and responsibilities
Design errors may be attributed to numerous factors: simple calculation mistakes, use of incorrect design codes, misinterpretation of the brief, inaccurate or insufficient site investigation data, inadequate change control, lack of technical understanding, poor project interfaces, inadequate checking procedures, inaccurate mapping, poor knowledge of site constraints, and several other factors. The list is long, which might explain why design issues are so prevalent in the CRUX dispute causation rankings.
Responsibility for design will vary depending on the selected procurement route. With traditional design-bid-build the owner and its consultant will generally be responsible for the project design, but in design-build, the contractor may inherit an outline design which it is responsible for developing and detailing, in which case responsibility may be shared. In design-build, the contractor may sub-contract these duties to an independent designer. If design responsibility is clear and properly managed, this can work well. If not, disputes are highly likely.
In construction it is generally accepted that the earlier that a mistake is identified, the lower the cost of rectification. If, for example, a bridge foundation design includes errors in its piling calculations, but the problem is successfully identified during the design check, the situation is recoverable with limited effort and damage. However, should the mistake pass unidentified until after contract award (when construction has commenced and materials are arriving on site) abortive costs and delays are highly probable. Should the error not be identified until the bridge is erected, it may be necessary to demolish the bridge.
Perhaps this is an extreme example but, as a general principle, investment in ‘right-first-time’ design will almost certainly reduce costs in the longer term.
The introduction of Building Information Modelling (BIM) has huge potential to reduce errors in design, and therefore reduce the number of disputes. Through the creation of 3-D or 4-D models, with links to supporting documentation, the parties can view their project through all stages of development and can collaborate, communicate, and share information and project records. Potential clashes between different elements of the design (roadworks, structures, drainage, utilities) will be identified at an early stage (if not avoided altogether) and alternative design scenarios may be explored in the confidence that their impact on the wider project is properly understood.
Delayed or restricted access to the site can lead to significant challenges
Late or obstructed access to a site can cause considerable difficulties – either at the planning stage when access is required for ground investigations and for topographical or other surveys – or at the construction stage where timely access is essential if the contractor is to deliver to schedule.
Once construction starts, delayed access can result in plant lying idle and labour left under-utilised. For linear transportation projects such as roads, a site fragmented by parcels of unavailable land can introduce significant logistical issues, especially if the traditional earthworks haul route running the length of the site is obstructed. Particularly for long linear sites the number of interests crossed or intercepted along the route (land, utilities, etc) may be substantial.
Securing and making available the site is normally performed by the owner prior to construction. Where land possession cannot be guaranteed from the outset, phased land release can be written into the contract at tender stage. By so doing the contractor is at least aware of the limitations and can plan around them. If it is necessary to expedite the start of the works, responsibility for arranging temporary access or permits will sometimes be delegated to the contractor.
Security of land or access rights should be a key priority during the planning stages, especially given that planning and land acquisition procedures may take years to resolve.
Contract interpretation issues
The interpretation of contract clauses continues to be a significant factor in construction disputes, affecting almost a quarter of the projects where HKA has been engaged in the resolution process. Typically, such disputes are more prevalent in bespoke contracts than those employing standard forms, but they are also common where additional, substitute or amended clauses have been introduced, perhaps with poor drafting skill or with insufficient consideration of whether the changed clauses contradict other clauses in the contract. At dispute hearings, a poorly drafted contract will often work against the interests of its author –typically the owner – who had the opportunity to get it right but did not.
Appropriate allocation of risk will reduce disputes. It is often stated that risk should rest with the party best placed to manage it. Yet sometimes risks may be passed from an owner to a contractor through clause amendments with insufficient deference to this principle. This may be dictated by time constraints – for example, no ground investigation data available at tender, making the contractor responsible for ground conditions. Of course, the contractor can price for undertaking its own investigations, but within a fixed tender period, will this be sufficiently comprehensive? Here, short term gain may mean longer term pain.
Regardless, time spent wording clauses correctly is time well spent. Drafters should employ fresh eyes to review not just the words employed, but their intended consequences, and to robustly challenge both their soundness and fairness.
Every effort should be made to maximise clarity of the clause wording, especially with regard to the responsibilities of the parties, and all elements of the contract, including drawings and specifications, should be mutually compatible and free of contradictions. Where there is a chance of surprises (for example, ground conditions), contract drafters should expect the unexpected and prepare accordingly, but it should always be crystal clear where responsibilities lie.
Will we ever stop disputes in road construction?
Probably not, but much can be done to reduce the prevalence of the issues which lead to disputes and the significant sums expended annually on their resolution. In particular, for the matters which CRUX identifies as the most prevalent, industry practitioners should:
Recognise the extensive linear nature of a road scheme as opposed to a discrete site and invest in both the quality and quantity of ground investigation. Money spent at this stage is rarely wasted.
Ensure robust checking procedures for all aspects of the highway design (not just those where they are obligatory, such as with structures). Engage an experienced reviewer independent of the original design to ensure that the whole design package is coordinated and consistent.
Document everything thoroughly at all stages, as if anticipating a dispute. Clear supporting documentation is as important for avoiding disputes as it is for satisfactory evidence when they occur. If a formal dispute process is embarked upon, the party with the best records stands the best chance of winning.
Ensure that a robust process exists for the management of change. Disputes often focus on how the change was implemented and its impact on programme and costs. CRUX consistently identifies change of scope as the largest single cause of disputes. Poor documentation of decisions lies at the heart of this. Change in construction is virtually inevitable, so the industry should be prepared for it and manage it better.
Embrace BIM technology. BIM not only facilitates efficient design but addresses one of the greatest obstructions to swift dispute resolution: the shortage of accurate and reliable records. Insufficient or inconclusive documentary evidence enables both sides to claim to be right, but a ‘smoking gun’ will make at least one of the parties think twice.
Conclusions
Disputes in road construction projects are not about to disappear, but there is much that the industry can do to minimise the chances of a dispute occurring and, when it still does, to maximise the opportunities for prompt resolution. Early investment in development and a focus on well-written contracts combined with effective communication must lie at the heart of any improvement.
Some factors are harder to change. Low margins and high risk can encourage contractors to rely on successful claims to turn a profit. Furthermore, disputes thrive on uncertainty – but risk and uncertainty can both be managed.
But possibly the most significant change we will encounter in the coming years will emanate from increasing engagement with technology, especially BIM, which will impact on all the above issues. It will be of particular interest to revisit the league table in a few years to see whether engagement with technology has indeed impacted on dispute causation.
Regardless, there is much still to get right. The road to dispute-free construction will be a long one.
For more information about services HKA can offer in dispute resolution, please contact petercaillard@hka.com.
About the author
Peter Caillard is a Chartered Civil Engineer with nearly 40 years of experience in the construction industry. Peter has managed projects through all stages of construction from preliminary design through to final account using a variety of forms of contract. He has been engaged with projects throughout the world including the UK and Europe, the Middle East, Africa, and North America, and his experience covers all aspects of design and construction including highway geometry, road pavement construction, drainage, earthworks, highway structures, public utilities, and materials testing. He is widely experienced in the design and construction of highways, transport and infrastructure projects.
