Avoiding disputes to deliver success What types of……

1、Avoiding disputes to deliver success What types of problem can escalate into disputes?Richard Bayfield FICE FCIArb ()I.ukAdjudicators Workshop Jan 2008Construction now familiar with “lessons learned workshop” but 2012 will be too late T5 / Wembley / Emirates will be relevant Workshop - approx

2、40 ICE Adjudicators present following questions asked:Who has NEC experience as a Construction Professional? and as an Adjudicator / Disputologist?What disputed issues have you been involved with as an Adjudicator and / or Advisor under NEC?What advice would you give to reduce potential disputes bef

3、ore 2012?What do you think are the key 2012 risks?Construction Industry History 1 of 2Construction Industry History 2 of 2Feedback Extension of time Programme Information (Absent)Resource Information (Absent)Contract Data (Missing / Incomplete)Works Information (Missing / Incomplete)Non-compliance w

4、ith Compensation event procedures time limitsNon-compliance with Compensation event procedures Project ManagerValuation of Compensation Eventi.e. Lack of knowledge by all partiesWhat issues have you been involved with as an Adjudicator and / or Advisor under NEC? - 1Feedback PM absents him/her self

5、(i.e. does not get involved, avoids issues / problems e.g. does not approve a programme or else rejects a programme without any reason)Non adherence to “time limits” for reply within contract 7 days Does not carry out his / her role under the contracti.e. - Project Manager FailureContract assumes de

6、sign is complete when it is not result is 1000s of compensation events c.f. global claimMis-apply / mis-understand Targets (e.g. lane rental bonus)Contract amendments (e.g. use of “contract data 3”)Effect of decision of external auditori.e. - Strategic FailureWhat issues have you been involved with

7、as an Adjudicator and / or Advisor under NEC? 2Feedback Valuation of Compensation Event (after disagreement between Contractor and Project Manager)Matters which were not addressed within the contract negotiation and contract documents matters not anticipated by either partyFalling out between 2 key

8、individualsFinancial difficultyExternal Factors Politics / Environment / Economics / Social / Technical (PEST Factors)i.e. “Unavoidable” dispute issues aboveWhereas “lack of knowledge, PM failure and strategic failure” disputes are all largely preventableWhat issues have you been involved with as an

9、 Adjudicator and / or Advisor under NEC? 3Adjudicator workshop Key Risks 1Modifying contract without understanding effectLack of resourcesCompetence (lack of) importance of good people / teams / project managementDesign changes (not managed / wrong contract form)Insufficient time before 2012 poor pr

10、ogramme managementGround conditions (adverse)Poor qualitySupply chain not “back to back” not “integrated”i.e. INTERNAL (to construction delivery team)Adjudicator workshop Key Risks 2Change of Mayor (and change of Policy) PoliticsTerrorismOil shortage / price / $ economy inflationStake Holder Managem

11、entIndustrial ActionChange in Lawi.e. EXTERNAL (to construction delivery team)Advice to ODACountermeasures to key risks:Invest in training the professionals (some estimate 75% never worked under NEC before) recognise NEC is a culture (early warning / pre-empting etc) as well as a contract (e.g. 7 da

12、y period) lack of knowledge disputeStrong / robust / competent Project Management (avoid PM inaction disputes) c.f. Adjudication answer the right question Project Manager failure disputeAvoid contract amendmentsAvoid “creeping” design into construction period (if contract assumes design is complete)

13、 potential of multiple Compensation Events (c.f. global claim)- Strategic failure disputeCompetence c.f. “lack of knowledge” disputesReference HSE (WWW.HSE.GOV.UK):To be competent, an organisation or individual must have:Sufficient knowledge of the specific tasks to be undertaken and the risks which

14、 the work will entail; andSufficient experience and ability to carry out their duties in relation to the project; to recognise their limitations and take appropriate action in order to prevent harm (c.f. damage) to those carrying out construction work, or those affected by the work Competent designers eliminate hazards and reduce risks manage the risk, not the paperworkOverviewWhat types of problem did escalate into disputes?Many different types of problem but common thread is lack of knowledge (NEC is sophisticated contract parties go into it with “eyes open”)