Use Of A Claims Triage Workshop To Choose An Analysis Method

USE OF A CLAIMS TRIAGE WORKSHOP TO CHOOSE
AN ANALYSIS METHOD

CDR 637
Monday, June 20, 2011
11:15 a.m. – 12:15 p.m.

Chris Carson, PSP, CCM, PMP
Robert Kelly, Jr., PSP, CFCC, PMP


• Corporate Director of Project Controls, Alpha Corporation
– Responsible for standards, processes, and procedures for a team of schedulers, analysts, and project
managers in multiple office locations, as well as analysis, work product, and testimony
– Developed and manages the in-house project controls training program at Alpha
• Certifications:
– PSP (Planning & Scheduling Professional – AACEi)
– CCM (Certified Construction Manager - CMAA)
– PMP (Project Management Professional – PMI)
• University: University of Virginia, Mechanical Engineering, 1972
• Professional Field: 38 years of experience in Construction Management Services specializing in
Scheduling, Schedule Analysis, Estimating, Claims
• Active in AACEi (Association for the Advancement of Cost Estimating International)
– Author of Recommended Practices in Scheduling & Forensic Schedule Analysis RP
• Active in PMI (Project Management Institute) College of Scheduling
– Vice President of Scheduling Excellence
– Managing Director for SEI (Scheduling Excellence Initiative) writing Best Practices and Guidelines for
Scheduling and Schedule Impact Analysis
– Serving on team writing Best Practices for Scheduling for GAO
• Active in CMAA (Construction Management Association of America)
– Served on committee revising Time Management Chapter of CMAA’s CM Standards of Practice
• Active in Planning Planet (global planning association)
– Chief Editor for US, writing Planner Users’ Guide, developing accreditation Guild for planners
• Something you don’t know about me: I’m a glider co-pilot, see picture
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• Degree:
– BA, English
• University:
– The College of William & Mary, 1990
• Years of Experience:
– 21 years experience, combined project management and consulting services; partnering
facilitation , neutral dispute resolution
• Professional Field:
– Construction project management, project controls, scheduling; vertical and horizontal
construction, projects $300k - $92m
– Claims evaluation and response; dispute resolution and litigation support
• Certifications:
– PSP (Planning & Scheduling Professional – AACEi)
– CFCC (Certified Forensic Claims Consultant)
– PMP (Project Management Professional – PMI)

• Something you do not know about me:
– Married to Lisa. Father to Emma Grace (7), Sarah Jane (4) and soon-to-arrive John Curtis (Kelly,
Sr.’s grand-children #2, #4 and #8)

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USE OF A CLAIMS TRIAGE WORKSHOP TO CHOOSE AN ANALYSIS METHOD

• AACEI Recommended Practice 29R-03 “Forensic Schedule
Analysis” properly notes that there are a number of factors to
consider in choosing a method of analysis in a time-related
dispute
• The presenters have developed a process that they have
called a “Claims Triage” for use in evaluating every new
dispute resolution assignment, organized and guided by a
checklist and procedures.

4


Why have a Claims Triage to Choose an Analysis Method?

• Variety of methods available – which is best?
• Broad consideration from multiple participants with different experiences
• Apply lessons learned
• Training and mentoring

• Choice of methodology is carefully considered and documented for use in the
analysis, well before the analysis begins.

5


Claims Triage Process

• Process involves a team approach
• Commitment to RP 29R-03 Forensic Schedule Analysis, Section 5 “Choosing a
Method”
• Team assignments based on experience
• Importance of objective viewpoint during document management, review and
analysis
• Lead Consultant is assigned

6


Information Needed for the Triage Session

• Lead Consultant is responsible for coordination of triage meeting
• Structure and conduct of the meeting is dependent on information developed
prior to meeting
• See Checklist A “First Meeting Interview with Dispute Resolution Client” for
information necessary
– Project Facts
– Dispute Facts
– Legal Facts
– Source Documents and Data Validation

• Engagement and Triage Information: chicken or the egg?

7



• Project Facts
– parties/stakeholders
– project type and description
– project location
– contract value
– bid, start, completion dates
– current project status – cost and schedule

8



• Dispute Facts
– an understanding of the dispute
– size of the dispute
– start of dispute
– duration of the dispute
– prior dispute communications
– current dispute documentation/tracking efforts

9



• Legal Facts
– Litigation calendar
– contract claims process
– prior claim communications
– current status of claim
– any rebuttal arguments known at this time
– any risks from counterclaims

10



• Source Documents and Data Validation
– contract
– plans and specifications
– project baseline schedule
– schedule update
– as-built information and accuracy
– contemporaneous validation sources (daily field reports, time cards, etc)
– Detailed bid estimate
– Job Cost Reports
– Requests for Information
– Change Orders
– Internal client analyses or reports

11



• Tasking and Budgeting
– Timeline for performance of the analysis
– Interim deliverables
– Budgetary constraints
– Methodology discussion
– Initial estimate of effort
– Client directive(s)

12


Expected Outcome from the Triage Session

• Eliminate potential methodologies
• Focused need on missing information
• Better-performance of final methodology selection
• Quality Control in process of methodology selection
• Confidence in methodology selection

13


The Triage Session

• Distribute information prior to Triage
– Documents acquired to date
– Summary of dispute
– Client-interview information
– Other “First Meeting Interview with the DR Client” information

• The earlier the better
• Well-briefed team = more effective Triage

14


The Triage Session

• Review Project and Case Background
– Client overview
– Project summary
– Disputed issues summary
– Availability & legitimacy of baseline & updates
– Availability & legitimacy of documents

15


The Triage Session

• Open Floor to Q&A from Triage team
– Information validation
– Identification of conflicts
– New questions and perspectives
– Identify missing information
– Guide for follow-up

• Now the Triage Team is ready to discuss the factors to
consider for the choice of methodology

16


The Triage Session:
Factors to Consider in Choosing an Analysis Methodology

• Contract Requirements
– Review the contract for stipulated method for forensic analysis or a method
for proving entitlement to time related compensation.
– Critical Path Methodology?
– Prospective or Retrospective: does specified methodology address either,
both or neither?
– Triage session must establish and discuss contract provisions

17


The Triage Session:

• Purpose of the Analysis
– “…quantify delay, determine causation, and assess responsibility for such
delay…”
– Assess financial consequences for delay
– Disruption impacts?

18


The Triage Session:

• Source Data and Reliability
– Certain methodologies cannot be performed without certain data
– Data set must be appropriate for method
– Reliability is as important as existence
– Data set must be consistent, complete, accurate
– Triage may establish need for further investigation of data existence and
reliability

19


The Triage Session:

• Size of the Dispute
– Cost of analysis must be commensurate with the risk to the client
– The Lead should attempt to understand what the negative risks and gains
are to the client and case
– Will cost of methodology consume most of or exceed potential gain?
– Is direct negotiation without independent analysis more appropriate?
– The methodology chosen must be limited to one of those that can be done
inexpensively but is still appropriate for the situation.

20


The Triage Session:

• Complexity of the Dispute
– The Lead should have an understanding of both the Project and the
issues in dispute.
– If the project is complex with large schedules and long project
durations, the analysis choice will likely be more limited
– Complexity can include the number and definition of interim, as well
as the need for specific technical background knowledge
– A decision by the Lead to withdraw could ensue
– The is one area where the lessons learned from the triage team can
provide very insightful feedback and raise concerns that might not be
obvious to individual analysts.
21


The Triage Session:

• Budget for Forensic Schedule Analysis
– The claims triage is an appropriate place to determine if the
budget allowed for analysis is sufficient
– It is one of the data points that should be collected from the
client
– The lead can direct the discussion to determine if the budget
seems reasonable
– It is important that the issue of approximate costs for analysis
on the discussion table.

22


The Triage Session:

– If there is any indication that the budget might be insufficient
for the task, now is the time to establish that concern.
– If the Team determines the Project is appropriate and there is a
legitimate and appropriate methodology, the Lead should open
the discussion about rough costs to perform the analysis, so he
or she is armed with an approximate range of costs for later
discussions with the client.

23


The Triage Session:

• Time Allowed for Analysis
– The allowable time determined by the client will factor very much into the selection
of an appropriate methodology.
– The time frame should incorporate:
• document review
• data validation
• time for research
• meetings with the construction team for interviews
• verification of facts in dispute
• development of the analysis and associated edits
• Alternate Dispute Resolution (ADR) calendar
• Trial calendar (ID experts, expert report production, response, deposition, etc.)

24


The Triage Session:

• Expertise of the Analyst and Resources Available
– During triage, Lead should address all expertise needs to develop the analysis and to
testify in the case
– The triage Lead should develop an understanding of the technical support available
from the full company resources, and make some initial determinations about team
composition.

25


The Triage Session:

• Forum for Resolution and Audience
– The triage lead will have discussed the forum for adjudication with the client prior to the
conduct of the triage work shop. It would have been inclusive in the answers to the “First
Meeting Interview with Dispute Resolution Client”.
– We believe it’s appropriate to treat every analysis matter as ”going to trial” and prepare
accordingly. This establishes a presumption of a higher level of scrutiny accorded to our
selection and implementation of methodology.

26


The Triage Session:

• Legal or Procedural Requirements
– The Lead should be fully briefed by client counsel regarding venue of the
trier of fact.
– Sound methodologies generally survive varying venues.
– Certain venues require atypical consideration

27


The Triage Session:

• Past History/Methods and What Method Opposition is Using
– Triage discusses any history with parties and methodologies
• Methodology
• Technical competence
• Results
– Examine friend and foe history

28


The Triage Session:
Choosing an Analysis Methodology

• Discuss Elimination of Methodologies
– Immediate elimination due to Factors
– Transition from easy elimination to in-depth discussion to elimination

29


The Triage Session:

• Recommend Methodology
– Methodologies surviving elimination round
– General methodology type
– Specific implementation
– Challenges to implementation
– Steps to address challenges

30


Conclusion
• Document triage effort
• Empirical support for decision-making
• Application of lessons learned
• Targeted need for information
• Prepare for next meeting with client
• Efforts and resources: assignment
• Guided performance
• Effort confidence
• Training and mentoring

31

Practice Triage Session

Now, let’s perform a sample Triage

32


The Triage Session

– General Contractor client – Design-Bid-Build delivery
– Construction of new high school
– Disputed issues summary
• Foundation problems
• Slow shop drawing submittals
• Pre-engineered building problems
• Contractor production problems
• IT re-design issues
• Utility changes

33


The Triage Session

– Availability & legitimacy of baseline & updates
• Baseline approved
• Monthly updates produced, no response about approvals
– Availability & legitimacy of documents
• Daily field reports reasonably detailed
• Meeting minutes haphazard
• Correspondence file light
• RFI, Change Estimate and Change Order logs available
• Monthly invoices available
• Several TIAs submitted contemporaneously

34


• Schedule Log
Chron Activity Critical Update Window Size Project Duration Remain. Time
File Name Start Date Data Date Early Finish Cum Delay Notes
Order Count Activities (cd) (cd) (cd)

6-Jul-09 15-Apr-09 15-Apr-09 26-Jul-10 578 29 0 N/A 467 467 baseline DC 2003
580 83 0 N/A
6-Jul-09 15-Apr-09 15-Apr-09 26-Jul-10 467 467 revised baseline DC Hodges 03
578 61 92
16-Jul-08 15-Apr-09 16-Jul-09 10-Aug-10 10 482 390 Revised baseline (Zero Progress)
9-Mar-09 50 0 N/A
15-Apr-09 15-Apr-09 26-Jul-10 571 467 467 Baseline Revisions DC 03
50 0 N/A
15-Apr-09 15-Apr-09 15-Apr-09 26-Jul-10 571 467 467 Baseline Final
1
#VALUE! 16
15-Apr-09 1-May-09 N/A #VALUE!
DESIGN 8 8 Design Issues Schedule
19-Oct-09 19-Oct-09 29-Sep-10 112 65 171
15-Apr-09 571 532 345 Update October 19, 2009
2
4-Dec-09 4-Dec-09 91 46
15-Apr-09 571 558 325 Update December 04, 2009
3 25-Oct-10 133

4-Dec-09 15-Apr-09 4-Dec-09 9-Dec-10 571 221 136 0 603 370 Update December 04, 2009, with Glenwood
3
21-Jan-10 21-Jan-10 15-Dec-10 212 142 48
15-Apr-09 571 609 328 January Update 2010
4
154 41
15-Apr-09 571 621 299
5 3-Mar-10 3-Mar-10 27-Dec-10 213 February Update 2010
154 77
15-Apr-09 571 621 222
6 19-May-10 19-May-10 27-Dec-10 127 May update 2010
133 44
15-Apr-09 571 600 157
7 2-Jul-10 2-Jul-10 6-Dec-10 134 June Update 2010
144 26
15-Apr-09 571 611 142
8 28-Jul-10 28-Jul-10 17-Dec-10 185 July Update 2010
172 0
15-Apr-09 28-Jul-10 639 170
IT 14-Jan-11 577 185 IT Claim with July Update
199 65
15-Apr-09 571 534 266
9 1-Oct-10 1-Oct-10 10-Feb-11 113 September Update 2010
227 2
15-Apr-09 3-Oct-10 694 158
TANK 10-Mar-11 576 114 Day Tank Claim with Sept Update
213 31
15-Apr-09 571 680 113
10 3-Nov-10 3-Nov-10 24-Feb-11 82 October Update 2010
219 37
15-Apr-09 571 686 82
11 10-Dec-10 10-Dec-10 2-Mar-11 62 November Update 2010
210 67
15-Apr-09 571 677 6
12 15-Feb-11 15-Feb-11 21-Feb-11 18 January Update 2011
256 31
15-Apr-09 571 723 21
13 18-Mar-11 18-Mar-11 8-Apr-11 6 February Update 2011
295 39
15-Apr-09 571 762 21
14 26-Apr-11 26-Apr-11 17-May-11 6 March/April Update 2011

35


• Schedule Log
Chron Activity Critical Update Window Size Project Duration Remain. Time
File Name Start Date Data Date Early Finish Cum Delay Notes
Order Count Activities (cd) (cd) (cd)

6-Jul-09 15-Apr-09 15-Apr-09 26-Jul-10 578 29 0 N/A 467 467 baseline DC 2003
580 83 0 N/A
6-Jul-09 15-Apr-09 15-Apr-09 26-Jul-10 467 467 revised baseline DC Hodges 03
578 61 92
16-Jul-08 15-Apr-09 16-Jul-09 10-Aug-10 10 482 390 Revised baseline (Zero Progress)
9-Mar-09 50 0 N/A
15-Apr-09 15-Apr-09 26-Jul-10 571 467 467 Baseline Revisions DC 03
50 0 N/A
15-Apr-09 15-Apr-09 15-Apr-09 26-Jul-10 571 467 467 Baseline Final
1
#VALUE! 16
15-Apr-09 1-May-09 N/A #VALUE!
DESIGN 8 8 Design Issues Schedule
19-Oct-09 19-Oct-09 29-Sep-10 112 65 171
15-Apr-09 571 532 345 Update October 19, 2009
2
4-Dec-09 4-Dec-09 91 46
15-Apr-09 571 558 325 Update December 04, 2009
3 25-Oct-10 133

4-Dec-09 15-Apr-09 4-Dec-09
Note – Activity Count does not change within updates
9-Dec-10 571 221 136 0 603 370 Update December 04, 2009, with Glenwood
3
21-Jan-10 21-Jan-10 15-Dec-10 212 142 48
15-Apr-09 571 609 328 January Update 2010
4
154 41
15-Apr-09 571 621 299
5 3-Mar-10 3-Mar-10 27-Dec-10 213 February Update 2010
154 77
15-Apr-09 571 621 222
6 19-May-10 19-May-10 27-Dec-10 127 May update 2010
133 44
15-Apr-09 571 600 157
7 2-Jul-10 2-Jul-10 6-Dec-10 134 June Update 2010
144 26
15-Apr-09 571 611 142
8 28-Jul-10 28-Jul-10 17-Dec-10 185 July Update 2010
172 0
15-Apr-09 28-Jul-10 639 170
IT 14-Jan-11 577 185 IT Claim with July Update
199 65
15-Apr-09 571 534 266
9 1-Oct-10 1-Oct-10 10-Feb-11 113 September Update 2010
227 2
15-Apr-09 3-Oct-10 694 158
TANK 10-Mar-11 576 114 Day Tank Claim with Sept Update
213 31
15-Apr-09 571 680 113
10 3-Nov-10 3-Nov-10 24-Feb-11 82 October Update 2010
219 37
15-Apr-09 571 686 82
11 10-Dec-10 10-Dec-10 2-Mar-11 62 November Update 2010
210 67
15-Apr-09 571 677 6
12 15-Feb-11 15-Feb-11 21-Feb-11 18 January Update 2011
256 31
15-Apr-09 571 723 21
13 18-Mar-11 18-Mar-11 8-Apr-11 6 February Update 2011
295 39
15-Apr-09 571 762 21
14 26-Apr-11 26-Apr-11 17-May-11 6 March/April Update 2011

36


• Chart Cumulative Delays directly from Schedule Log

37


• Chart Cumulative Delays – Overlay known delay event timeframes

38


• Chart Cumulative Delays – Label known delay timeframes

39


• Chart Cumulative Delays

Period of possible concurrent submittal problems

40


• Chart Cumulative Delays – Note any general issues/concerns

Shows two schedules with same data date & different EF dates

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

41


• Chart Cumulative Delays – Identify specific delay/acceleration concerns

No overall delay due to IT design

42


• Chart Cumulative Delays – Identify specific delay/acceleration concerns

Period of possible concurrent production problems

43



Period of possible concurrent production problems
No overall delay due to IT design

Period of possible
concurrent submittal
problems

Shows two schedules with same data date & different EF dates

44


– Only provides very simplified overview for discussion
– Can show if analysis will be dealing with simple delay
– Helps expose more complicated analysis needs
• Acceleration/mitigation
• Concurrency
• Disruption?

45


The Triage Session

• Open Floor to Q&A from Triage team
– Hold questions here for when we go through the specific
factors

• Now the Triage Team is ready to discuss the factors to
consider for the choice of methodology

46


The Triage Session:

• Contract Requirements
– Contract documents specify contemporaneous prospective TIAs
– Contract is silent on forensic analysis methodologies
– Contract stipulates project duration
– Contract stipulates project schedule must run from NTP to CCD

47


The Triage Session:

• Purpose of the Analysis
– Quantify delays
– Determine causation
– Assess responsibility for delays
– Review concurrency – potential overlapping responsibilities for delay
– Used for negotiations

48


The Triage Session:

• Source Data and Reliability
– Schedules appear OK
• Baseline approved
• Updates not approved or disapproved, but used for
contemporaneous project management
– Little information about project progress meetings
– Little correspondence from Contractor
– More correspondence from Owner but still light

49


The Triage Session:

• Size of the Dispute
– Claim entitlement believed by contractor
• $220,000
– Liquidated Damages risk - $600/day – 300j days delay
• $180,000
– Swing of risk costs
• $400,000

50


The Triage Session:

• Complexity of the Dispute
– High school project – straightforward construction
– Complexity of issues
• Foundations problem – simple
• Pre-engineered building –may require some engineering
evaluation
• Submittals issue – simple
• Production issue – requires resource data
• IT redesign may require technical assistance
• Utilities changes - straightforward
51


The Triage Session:

– Contractor first reaction - doesn’t want to spend over $50,000
– Using $180/hour for Analyst
• Supports 7 weeks at that maximum cost
• Reduce max by 3 weeks for meetings, contingency
• Budget permits ~4 weeks of analysis

52


The Triage Session:

• Time Allowed for Analysis
– Contractor wants analysis done in 4 weeks – 20 days – ready to
meet with Owner
• 2 days - document review
• 1 day - data validation
• 8 days - time for research
• 1 day - meetings with the construction team for interviews
• 2 day - verification of facts in dispute
• 6 days - development of the analysis and associated edits

53


The Triage Session:

• Expertise of the Analyst and Resources Available
– Expert and team has experience in observational and modeled analyses
– No experience in subtractive modeling (sorry, Andrew)
– Workload is moderate, lead analyst and staff available

54


The Triage Session:

• Forum for Resolution and Audience
– Analysis designed for negotiation with Owner and Owner’s CM
– Informal meeting, no rules
– Owner’s CM is knowledgeable about forensic analysis (OK, we know, just
take this on trust)
– Owner is generally fair if case can be proven, but bar for convincing Owner
is fairly high

55


The Triage Session:

• Legal or Procedural Requirements
– Moderate potential for need to go to litigation
– Contract calls for litigation, not arbitration
– Mediation may be first step in path to litigation

56


The Triage Session:

• Past History/Methods and What Method Opposition is Using
– Methodology
• CM uses forensic consultant who prefers additive modeling
– Technical competence
• CM’s consultant and CM historically have fairly low level of
competence in forensic analysis
• Owner has minimum level of technical competence
– Results
• CM’s consultant has weak litigation success history

57


The Triage Session:
– Lack of experience
• Eliminate MIP 3.8/3.9 Subtractive modeling (collapsed as-built)
• Questions
– How does negotiation venue affect choice?
• Can perform simpler analysis? How simple?
• Analysis must still be capable of expansion into litigation ready?
– Eliminate MIP 3.6 – Modeled additive single base (IAP)
» Ignores changing nature of critical path
» Cannot show concurrency
» Will likely show very different results than other methods
» Highly unlikely to prevail in court

58


The Triage Session:
– How does opposition consultant’s preference for additive modeling affect?
• More likely to choose additive modeling? - working in same
method
• Less likely to choose additive modeling? – prefer not to get into
methodology comparison arguments

59


The Triage Session:
– What about opposition’s weak history?
• Use of MIP 3.6 Modeled additive multi-base (Retro TIA)
– Eliminate modeled additive multiple base (MIP 3.7)
» Document availability and validation need similar to MIP 3.3/3.4 (CPA)
» Cannot show concurrency or pacing
» Modeled approach more subjective than observational
» Increases challenges over observational approaches
» Takes more time and cost more than observational

60


– Methodologies surviving first elimination round
• MIP 3.1/3.2 – Observational static gross/periodic (APAB)?
• MIP 3.3/3.4 – Observational dynamic as-is/split (CPA)?
• MIP 3.5 – Observational dynamic recreated (Modified CPA)?
– General methodology type discussion
• Unlikely to need to recreate updates since they were used
– Eliminate MIP 3.5
• Presence of usable/contemporaneous updates
– Eliminate MIP 3.1/3.2
• Activity count did not change in updates
– Eliminate MIP 3.4 – likely no logic changes – can still choose later

61


The Triage Session:
– Observational
• Specific implementation
– Choose MIP 3.3 – Observational dynamic as-is (CPA)
• Challenges to implementation
– “To yield accurate results, critical aspects of the contemporaneous schedule updates used in
the analysis must be validated as accurate both in reported progress to date and in the
network’s representation of contemporaneous means and methods”
– “ The method is strengthened if it can be shown that the project participants considered or
used the contemporaneous schedules in constructing the project”
– “Cannot be implemented if contemporaneous schedule updates do not exist “
• Will need to validate the updates during implementation for both the as-built
and current as-planned condition
62

USE OF A CLAIMS TRIAGE WORKSHOP TO CHOOSE
AN ANALYSIS METHOD

CDR 637

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