Author: Mary-Ann Goodier

We work in a complex contract delivery environment that is dependent on a global supply chain for both services and products. The COVID-19 pandemic has focussed minds on the risks to the security of supply and contract continuity within a global supply chain. The decision-making process that one would go through in determining how to contract with a third party to deliver a product or service, which when deployed would achieve its intended benefit, is probably going to change as a result.

We outline below the approach that can be followed in preparing for successful contract delivery – right from the initial point where a need is identified, through to the delivery of a successful contract to enable all benefits to be realised.

As will be noted, to realise true benefit relies on a well-structured set of steps including the use of the best form of contract and attendant set up processes.

The Contract
An agreed contract is the expected ‘control’ output adopted once a procurement process is concluded. Where there is a repetitive need for a product or service, it is common to find a standardised approach – a standard form of contract. This standard form of contract seeks to assign risk (to success) to the party best placed to handle it, albeit the client always pays for the risk either in the contract price or in subsequent changes to the project.

Most common standard forms of contract have been updated to contain terms that promote the principles of security of supply and contract continuity. The COVID-19 pandemic has exposed the relevance of such contract commitments, and has highlighted the need to identify the appropriate owner of the risk. As a result, there is likely to be an increased emphasis on geographical self-reliance to enable entities to contract for successful delivery in anticipation of any future similar risk events.

A useful toolkit for appraising delivery risk is the Project Initiation Routemap[1] (the Routemap).This provides a mechanism through which the decision-making process can consider risks in the delivery environment and have effective controls in place to deal with them.

Contracting Successfully
The Routemap places emphasis on, and provides a framework for, understanding the complexity of the project in the context of the prevailing delivery environment prior to placing the contract. This is essential in designing a delivery model which reflects the delivery environment that will enable the successful delivery of the project and its benefits. In addition, the Routemap’s ‘Align for Success’ module sets out detailed guidance.

Contracting successfully depends not only on what is done, but also when and how it is done. Thus, to be successful in delivery, information must be sought at the right time, in the right amount and used in a timely manner. The relevance of seeking to understand the timely use of information is captured by the following phrase from research conducted by The University of Warwick ^[2]:

“thinking without knowledge of facts remains empty and fictitious; but information alone can be just as much an obstacle to thinking as the lack of it”.

This statement is applicable when considering supply chain risk in a complex delivery environment. Based on our extensive experience, the key high-level steps which need to be followed in ensuring that a project has a good start are set out below.

• Requirements Flow Down – The top-down consultative process of creating a clear line of sight from the strategic outcomes/benefits, through a series of interface control points, to commonly agreed task specific outputs. This process ensures alignment to the need, reduces ambiguity, and helps in scope definition and breakdown into clear discrete work packages. The interface control points are stages at which authority gets delegated further down the delivery team/supply chain. These parties have clear accountabilities and reporting requirements to ensure that there is continued alignment to the benefits realisation during the delivery of specific outputs.
• Complexity Assessments – Analysis of the delivery environment and its impact on the delivery of the requirements will consider politics, culture/behaviours, language, technology, economics, environmental and legal issues within the delivery team, sponsor organisation and the market.
• Capability Assessments – Analysis of the competences and capacity to deliver the requirements within the delivery team, wider sponsor organisation and the market.
• Augmentation Strategy – Alignment of the data from the capability and complexity assessments to create a baseline database that can be used to identify gaps within the delivery team and sponsor organisation to deliver the requirements in context of the delivery environment complexity. This includes determining how the market can be used to augment any capability and capacity gaps. An effective control framework can then be designed to address uncertainty, identified risks and opportunities to ensure that effective and efficient ways of working would be realised.
• Category Management – Engagement with the market to optimise the sourcing of scope/work package support to reduce supply chain risk and deliver efficiency savings.
• Delivery Model – Data enabled delivery structure which ensures that information is received at the right time by the right people for the right decisions to be made with clarity of purpose. Decision points and independent reviews are embedded to facilitate the monitoring of the alignment during delivery.
• Procurement Process – Formal process following the applicable legislation and established controls suitable to the desired delivery environment.

Conclusion
As a result of the lessons learned from the current COVID-19 pandemic, it is likely that there will be an increased focus on delivery environment risks that may threaten security of supply and contract continuity. The delivery environment risks are better understood through alignment of capability and complexity assessments.

Early engagement with relevant stakeholders in undertaking capability and complexity assessments, will ensure a better alignment of requirements to the capacity and capabilities of both the market and sponsor organisation. Thus, taking time to prepare and plan prior to entering a contract will be critical to successful contract delivery.

The resulting contract delivery models will need to be adaptable to managing dynamic risks, especially those posed by global supply chains, to ensure minimal disruption to contact continuity in the event of future events like the COVID-19 pandemic.

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Gideon Kamya-Lukoda is a Chartered Engineer with experience in project and programme management and delivery of capital projects, considering the application and implementation of Health and Safety regulations, including the evolving status of CDM regulations. Gideon currently assists engineering, technology and construction industry sector clients with projects in distress or already in claim/dispute situations, focussing on the design and operation of governance and planning controls.  Drawing on earlier experience in research, design and standards compliance, Gideon can also assist in the evaluation of the design and operation of control frameworks, such as standards development and implementation framework in project organisations.  

For as long as humankind has walked the earth, we have sought to improve and adapt our environment, although often great structures were understandably built in early history by trial and error. The Roman builders were perhaps the first to adopt an analytical approach to building geometry and record those methods for practical use. Following the decline of the Roman age, much of that recorded knowledge fell into disuse, great cathedrals were built, often by empirical methods.

In the 17^th century, some thinkers turned their attention to the physical sciences. As the First Industrial Revolution became established, new materials became available that advanced the boundaries of established knowledge.

At the beginning of the 20th Century, new forms of construction were emerging with the use of reinforced concrete and steel frames. There was a plethora of proprietary systems and patentees, but no regulating body to advise upon acceptable practices.

A ruling body that would provide design guidance to support parties planning to deploy reinforced concrete and steel frames, was required. Such guidance was not catered for by engineering institutions then in place, nor was there any provision as to how to use these materials within the London Buildings Act.

In 1908 a group of practitioners congregated in London’s Ritz Hotel and collectively agreed to the establishment of The Concrete Institute. Interestingly, the hotel in which they met had recently been completed using a steel frame within its construction; a reflection of the rapidly evolving construction industry of the time.

Four years later, it became clear that the growth in construction necessitated the establishment of a more broadly based body to advise on good practice in all aspects of structural engineering, particularly steel frames. This duly gave rise to the Institute of Structural Engineers, itself developed from the Concrete Institute.

The formation of this new Institute brought about the definition of specific relevant terms as follows:

• “Structural Engineering”: “a branch of engineering which deals with the scientific design, the construction and erection of structures of all kinds of material”[1]; and
• “Structures”: “those constructions which are subject principally to the laws of statics as opposed to those which are subject to the laws of dynamics and kinetics, such as engines and machines”.[1]
  

What is The Role of the Structural Engineer?

The role of the structural engineer is an essential element in the construction process. Structural engineering is a specialised discipline within the broader discipline of civil engineering, focusing on the design and integrity of structures such as, buildings, bridges, and monuments. 

Structural engineers must have a sound understanding of maths and physics, and the ability to apply those skills in creative problem-solving. Being able to understand the theoretical principles of mechanics, mathematics and physics is not enough, however, to define an engineer. Those skills must be developed by applying them to the design of safe and sustainable structures. Structural engineers often take a sophisticated concept design and develop a solution that is capable of being executed practically, safely and within commercial parameters.

The roles and responsibilities of structural engineers can be diverse and varied, but typically include:

Design

For many structural engineers, the primary focus is the technical structural analysis in the design of structures. Typically, this covers deriving the loads and assessing stresses the construction will be subjected to in service. Structural engineers also need to have an in-depth knowledge of the properties of a range of building materials, and understand structural form to provide support beams, columns and foundations.

Investigation

Another key role of a structural engineer is investigation. Before design work can begin, structural engineers are involved in the preliminary assessment and survey of proposed building sites to determine the ground conditions. This allows them to assess foundation options, and often to assess existing structures for planned modification.

Communication

One fundamental role of a structural engineer that is sometimes overlooked is communication. As structural engineers often work as part of teams comprising multiple construction professionals, their ability to communicate ideas and solutions to provide co-ordinated responses is vital to the success of a project. Such communication and collaboration skills are also important should structural engineers be called upon to assist government bodies with investigations relating to their specialist field.

Responding to the Environment

A significant factor in drawing up the design is to use the environment in which the structure is to be built, operated and maintained. Accordingly, parameters for designs are based upon statistical analysis of historic data to ascertain the likelihood of an event impacting a given structure.

For example, the impact of wind loading, and rainfall associated with a 1 in 100-year (or 1%) storm – are assessed to ascertain how they will affect the life of the building.  As a greater volume of more detailed information is recorded, fundamental design parameters are continuously evolving, not least because intense storms are occurring with increasing frequency.

In addition, building gravity loading comprising of permanent (dead) loading and variable occupancy (imposed) loading are also considered. Those occupancy loadings set out in standards are related to statistical probability that they will not be exceeded.

Due Diligence in Structural Engineering

In modern society, the term “Engineer” is overused, perhaps sometimes abused. However, in the United Kingdom, not only is a designated title of ‘Chartered Engineer’ highly respected, but ‘…it is also protected by Civil law’[2].

In order for this title to be bestowed on an individual, they will have to hold either a relevant degree (such as mathematics, engineering or science) or a Higher National Certificate or Diploma. A further stipulation, in place since 1997, means that candidates are required to demonstrate additional learning and knowledge by gaining a relevant Masters’ degree.

With this training and associated assessment completed by a sponsoring institution, an individual can then apply for Chartership registration with the Engineering Council in its capacity as the regulatory body for engineers

As this registration is required, this means that due diligence as to the qualification and relevant experience of individuals can be checked readily.

In addition, there are also professional bodies that maintain membership directories as follows:

The Institution of Structural Engineers
Institution of Civil Engineers

It is perhaps worth noting that, by contrast, the contracted term ‘Engineer’ – interpreted often to denote someone engaged in the design, manufacture, operation and maintenance of a system – is not a protected title in the UK. This is the case, as the terms ‘engineering’ and ‘engineer’ have been used in common parlance for many centuries.

A Continuously Evolving Profession

On May 16th 1968 in Canning Town, London, a gas explosion caused Ronan Point, a 22-storey block of flats to partially collapse.

Although, fortunately, there were few casualties, subsequent investigations identified deficiencies in both design and construction as factors that had given rise to the failure. Inevitably, public confidence in high-rise residential buildings sank, but as a result of the investigations, major changes in UK building regulations were implemented. Those findings influence how we design buildings today:

“The building shall be constructed so that in the event of an accident the building will not suffer collapse to an extent disproportionate to the cause.[3]”

Signs of a Disproportionate Collapse

In structural engineering, a disproportionate collapse refers to a situation where the failure of a small part of a structure leads to a disproportionate or widespread collapse of the entire structure. Structural engineers are trained to analyse and design structures in a way that minimises the risk of disproportionate collapse, especially in critical structures like buildings and bridges.

To assess whether a collapse is disproportionate, the following factors are considered:

• The collapse, proportionate to the size of initial event; and
• The degree to which the damage extended, which has given rise to gradual collapse, may be deemed to have brought about disproportionate collapse.
  

There are, however, instances where complete collapse is accepted. In other cases, partial collapse, without collapse spreading unduly, or indeed a significant distortion or alteration to the structure can be regarded as manageable. That is, the structure must be stable as opposed to serviceable as, ultimately, the imperative is for the structure not to put lives at risk.

Once occupants are evacuated to a place of safety, it may be necessary to demolish the building.  The structural requirement states that the primary frame and floors must provide for emergency evacuation, but does not extend to the stipulations regarding the protection of façade, finishes etc. That is, the requirement has a simple aim of saving lives. It is not required to attenuate all outcomes, rather, just avoid collapse becoming disproportionate.

Continual Development

On June 14th 2017 the 24-storey Grenfell Tower block in North Kensington, London caught fire. The fire, which engulfed the building, caused at least 72 deaths, and over 70 injuries.

As with Ronan Point, public confidence in such structures has dropped. This and the subsequent Hackett report, which identified shortfalls in current Building Regulations, mean changes in UK building regulations are expected to be implemented.

Looking to the Future

It has been said that were it not for engineers, we would all still be living in caves. We sometimes allow ourselves grandiose mission statements, “to divert natural resources for the benefit of humankind”. Perhaps more pertinent to our engineering role is we are at the forefront of assessing the natural environmental influences on our designs, wind, rain and flood. 

Over the course of my 30+ year career, what might have been considered an exceptional event a few years ago is now becoming common place. I am confident, however, our profession will continue to manage new emerging challenges

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Many words of wisdom have been penned for the Expert Witness embarking on his or her first experience of testifying, and numerous training courses exist to coach the Expert through the minefield of the courtroom experience. Despite this, the Experts who perform best on the witness stand are not necessarily those who have attended the most training courses, or with the highest level of technical knowledge, but those who understand the importance and value of the Expert in the courtroom and, in particular, those who follow a few basic rules.

1. Be prepared.

Probably the number one golden rule! It is often said that to fail to prepare is to prepare to fail. Never is this truer than on the witness stand. Ensure that you know your report inside out. This is particularly important in the case of jointly authored reports. Opposing counsel frequently enquires at the start of cross-examination ‘for which parts of the report are you responsible?’ Make sure that you can answer for everything for which you have acknowledged authorship.

Never allow yourself to be caught out by your own words. Read and re-read your report such that you’re fully familiar with everything you have said.

Ensure that you understand as much about the procedural process as possible and, should the opportunity avail, visit the venue in advance to familiarise yourself with the layout of the facilities.

2. Remember that your role is to assist the arbitrator.

Although opposing counsel asks most of the questions, your answers are to the arbitrator. Try to look at the arbitrator when answering. It will help keep their attention. Eye contact indicates truthfulness. Always consider how your answer will help him – and do not hesitate to provide additional explanation if pertinent to the question and will assist the arbitrator’s understanding.

Strive to impart upon the arbitrator the utmost confidence in you and your testimony. If he is confident that you have taken your duty of impartiality seriously, and that your focus is solely on assisting him understand the issues and reach his decision, then the influence of your testimony is hugely enhanced.

You should never act, or be perceived as acting, as a ‘hired gun’. The witness who is seen to simply defend the case of his appointing party, however well-trained, however skilled, however eloquent, will not command the confidence of the arbitrator, and the impact of his evidence will be fatally diluted. The hired gun has shot himself in the foot!

Your credibility depends on the demonstration of your independence.

3. Do not stray beyond your knowledge.

As the old adage goes, “stick to your knitting” – avoid making statements in your report that you cannot justify or do not have the expertise to support. If under cross-examination the questioning goes beyond your knowledge or areas of expertise, you are fully entitled to point this out or caveat your responses accordingly. However, should the questions relate directly to opinions expressed in your report, you will appear weak if you cannot substantiate or defend your own words.

As the old adage goes, “stick to your knitting” – avoid making statements in your report that you cannot justify or do not have the expertise to support. 

Keep to your instructions and your opinions on those matters. Do not try to be the advocate of your client’s case. That’s someone else’s job!

4. Do not think that conceding a point is a weakness.

There are few more cringeworthy sights than an Expert squirming in the witness box as he attempts to defend a point as if his reputation depended on it. Actually, his reputation does depend on it; his reputation with the arbitrator depends on an accurate and relevant answer. Even if a concession might appear to weaken your client’s case, it is far better to concede it and move on, than to have excessive attention drawn to it by a skilled opposing counsel slowly taking you apart.

Where possible, turn the point to your advantage. The best approach is often to answer the question directly, then justify it. ‘That is correct…However…’ Use the opportunity, having directly answered the question, to explain why it is of no relevance, did no damage, was corrected by other matters, etc.

It is rare that an Expert sets out to deceive. But sometimes he can get carried away in his enthusiasm to defend his client’s case. Remember, it is not your role as the Expert to defend their client’s position. Your duty is to the arbitrator, and to give your Expert opinion on the matters referred to you to assist him with his decisions.

5. Never display irritation with the questioner or answer back.

In my dreams I think of all the retorts, the witty one-liners, or put-downs I would like to discharge at some of the interrogators I have faced in the past, but in my dreams is where such thoughts firmly stay!   The Expert’s ability to remain calm, resist provocation, and deliver a consummate professional performance is fundamental to gaining and retaining the confidence of the arbitrator. The arbitrator is unlikely to be a technical Expert in the subject under discussion. He needs your advice. Focus on that, and do not slide into pointless arguments.

There is never any benefit in locking horns with the opposing counsel. If your arguments are sound, your calm and reasoned responses to the questions will demonstrate the strength and validity of your opinions. An argumentative approach will be perceived as defensive and weaken your credibility.

6. Plan for any potential weaknesses in your curriculum vitae.

It is common practice for opposing counsel to commence his examination by questioning your CV; perhaps trying to imply a lack of experience in a particular field or jurisdiction. However, you can turn this into an opportunity. You should never claim experience that you do not possess, but you can use your answer to remind the arbitrator about the skills and experience that you do have; focussing on matters directly relevant to the issues in question.

Ensure you can reel off previous projects which involved similar type of work, or used similar contract forms, or were in similar locations. Demonstration of direct and relevant practical experience will always lend strength to your credibility.

7. Understand the opposing expert’s viewpoint.

It is easy, having spent many months preparing your reports, to be dismissive of the other side’s evidence. Do not fall into this trap. Ensure that you know as much as possible about the opposing Expert’s views and know what they’ve said about your work. You do not have to agree with their views, but if you are ignorant of them you risk being caught out on the stand. They may indeed have identified a flaw in your arguments. If they have, you need time to respond. The witness stand is not the time to find out that your arguments are not as watertight as you thought!

Equally, should you have identified clear failings in your opposite number’s opinions, you may even get the opportunity to point this out to the arbitrator in response to a question.

8. Listen very carefully to the question.

Ensure that you listen to and understand every question posed. If necessary, request that it be repeated. Failure to answer a question simply because you misunderstood it may give the impression of evasiveness. Sometimes counsel will ask long wandering questions with all types of extraneous comments slipped in. Take care not to agree with everything that is put to you!

Answer the question as directly as you can, then explain or caveat your response as necessary.  Avoid hesitating when responding. I have seen too many Experts hesitate when asked a question, not because they cannot answer, but because they feel a direct answer would be detrimental to their client’s case. Failure to give a direct answer to a direct question reduces credibility.

9. Focus on the questioner and the arbitrator.

Look the questioner in the eye when he asks his question. Look the arbitrator in the eye when you respond. Avoid too much eye contact with your own appointing legal and client team – a glance in their direction can give the appearance that you are seeking reassurance about your performance. Even an innocent glance following response to a question can appear to be asking “was that the answer you wanted me to give?”  Focus on the questioner and arbitrator only!

10. Own the court

When on the witness stand, try to ‘own’ the place. You are the centre of attention. Rightly take the attitude that, on the subject in question, you are the most knowledgeable person in the room, and are there to advise and inform the court such that it can reach its decision. Answer the questions at your own pace and in your own way. Dress smartly and speak with confidence, even if you are wracked with nerves (as we all are – every time!).

In summary

Many people find cross-examination a daunting experience, but it needn’t be. Follow a few simple rules as outlined above and your testimony will receive the respect, and achieve the influence, that a properly prepared testimony deserves.

It has been said that, of the level of influence exerted by a testifying Expert, only 10% is attributable to the words used. The remainder is conveyed through voice, body language, demeanour, attitude, and confidence. If the arbitrator believes in you, he will believe in your product. Job done!