Every claim must be supported upon fact. Hypothetical comparisons of various situations can be used to demonstrate perceived effects, but in themselves actually prove nothing. The simplistic concept of asking for the difference between recovery and (over) expenditure became unacceptable many years ago.
Thus the burden of proving things has become more difficult. This means that it is necessary to review every piece of information however insignificant at first sight it may appear to be. Thus every piece of information that can be analyzed must be collated. The skill lies not only in the detailed analysis of the collected information, but in how this information is collected and stored.
For a contractor to prove that he has suffered disruption, he must demonstrate the following two things:
- That when unhindered, he can perform at the rates implied by his tender.
- That he has not "lost" control, but that control over performance of the contract has been taken away from him by the client; this might include showing that:
- The scope of the work that he has to perform has changed, and that the timing of the notices of change have not been adequate.
- The information available to him has not been available at the time that he needed it, and that there were errors in what he did have.
- That the application of the resources available has been disrupted by the need to apply them in a manner that he could not envisage.
For a contractor to demonstrate the scale of the disruption that he has incurred he must further show that the application of his resources has been to specific problems created by the client and thus outwith his control.
For anything that is to be demonstrated or proven, only incontestable facts can be used. This means that no "hypothetical models" can be used - because the hypotheses can be challenged. The proof must rely only on inescapable fact, not probabilities. This effectively means attempting to bring to the claims situation a level of proof normally associated with a criminal court! (which is how most clients see contractors and contractors see sub-contractors).
It is a fact that only a limited amount of information can ever be available: the following categories can normally be expected - although often there may be gaps and thus it cannot all be used. From the tender, the following may be expected:
- Planning: a list of activities to be carried out.
- Resourcing: a list of the resources (category and numbers) to be applied to each activity to be carried out. This must match the tender in terms of bill rates. The principal resources are: Material, Plant, Labour, & Subcontracts. [Subcontracts should also be broken down into the same headings].
- Schedule: a schedule of when each activity was to be started and completed. This gives rise to the timing for the supply of all necessary information by the client to the contractor.
Good site records maintained during the execution of the contract are essential. They should normally include the following:
- Resources applied, i.e. Time Sheets: for each resource on site, its allocation (use) on a day by day basis to each activity on the planning list. Additional activities must be defined as they occur.
- The further allocation of resources to dayworks instructed by the client, i.e. traditional dayworks sheets, but allocated to an activity.
- Payroll or other information to validate that all the resources have been allocated properly, and that there are no duplications or gaps.
- A list of all enquiries raised, and instructions received (excepting document transmittals). For each instruction a note of the impact that it has on each activity, i.e. the change in the amount of work to be carried out, and the changes in resources required.
- In effect the same as above, but for every drawing, specification, etc issued for construction. Any document, whether it be for information only or not should be considered.
- Details of the work actually carried out on a regular basis. A complete measurement of the work carried on each activity for each time period. Preferably on a weekly basis, but not less than a monthly basis. This is the most difficult item, as measurement is often in arrears. Review of inspection records (if available) may make up for this normal deficiency.
The actual collection of all the information into a computer is essential: not only is there usually so much of it that it cannot be reasonably handled manually, but it can then be analyzed in any number of ways. There are three parts to gathering all the information together.
- To decide on how all the available information is going to be held (database design). Then to create the mechanism for actually inputting it (software).
- The next step is to actually code all the paperwork, if not already done, and to actually enter it - technical expertise (and experience of the actual site) required, plus clerical effort.
- Validation of all information as may be appropriate. Corrections etc.
Having a vast amount of data on a computer does not necessarily produce a claim! The problem is to review (analyze) it, and to present the results of the review such that the objectives of demonstrating disruption, and the scale of disruption are evident. The activity is much like a site investigation. Although one starts off with an idea or expectation of what the analysis will provide, it is more often the case than not that many other "cause and effect" connections are made.
The whole process must be repeated as many times as needed. It should be remembered that information must be entered into a set of databases, and that presentations must be done out of a spreadsheet. Thus the analysis is actually the process of creating what are known as flat files. There is no limit to the scope of these that can be created from any of the available information. This is where the particular skills of the analyst are of paramount importance. Detailed knowledge of multiple database manipulation techniques together with a long experience in recognizing any indicators of disruption are both required by the analyst.
The final presentation is relatively simple: graphs and tables files will have been derived, and the indicators linked together. A proper history of the events, and a calculation of the additional costs must be made, this being based upon the information used to demonstrate the claim in the first instance.
The strength of the methodology is that it is based entirely upon uncontestable facts, and most of these will stem from the client.
Some Types of Effect
Scope of work. To show that not only has the scope of the work being undertaken changed, but that it has changed in a manner outwith the contractors control. Typically this may include:
- Use of labour. With the scope of work changing the application of resources becomes disrupted: The dayworks will indicate a changing labour pattern - men being taken on and off the contracted (but changing) scope of work.
- Application of labour. To show that individual men, or gangs, have been moved from job to job and back again, taking up not where they left off, showing an increase in the "learning" period of getting (re)established to even a small amount of work.
- Performance. To show that in an un-disrupted situation, the contractor was able to perform at his tendered production rates, and the consequential result of disruption was lowered performance.
It is not possible to categorise all the effects which can be demonstrated: they depend on the skill and ingenuity of the analyst.