This document discusses balancing burdens of proof in construction projects. It defines key terms like burden of proof and balance. Maintaining balance is challenging due to complex environments with multiple stakeholders and uncertainties. Contracts aim to balance costs, claimed rights, unclaimed rights, and margins. Disruptions off the critical path are broadly unaccounted for and represent risks. To control more activities, owners should engage contractors, implement robust program controls, maintain design documentation, and work collaboratively. Digging deep into designs and proactively engaging stakeholders helps maintain balance during projects.

1. Balancing Burdens of Proof
in a Construction Project

2. Why So Legal?

3. •Burdens of proof
•Balancing and rebalancing contracts
•Balance
•Contractual mechanics
•Construction margins
•Tipping the scale
•Non critical disruptions
•How to control non critical disruptions
Overview

4. Defining: Burden of Proof
The obligation to prove what
is asserted and in dispute

5. Effectively controlled activities
=
Activities and events, for which proof
will be available, if a dispute arises

6. Keeping a contract
fair & balanced

7. Definition of Balance
•A situation in which different elements are equal
or in the correct proportions (Fairness, justice,
impartiality)
•An even distribution of weight enabling
someone or something to remain upright and
steady (Stability, Equilibrium, Steadiness)

8. Contract Event Damage Compensation
Maintaining Balance
Controlled activities

9. Maintaining balance, the challenge
Complex environmentMultiple stakeholders
Uncertainty & change Long term projects
Low margin of error Stability Vs. fairness

10. What are we balancing, in the
first place
1%-3% Margin

11. Co 1%-3% Margin
Long term Investment Collaboration
Testing & Innovation Talent
Processes and controls Technology

12. Late & over budgetOn time & on budget
Understaffed,
undertrained
Collaborative &
forward thinking
Contentious and
litigious
Smart, professional,
hardworking
Commercially
straightforward
Commercial
sophisticated
1%-3% Margin

13. Beating the Odds

14. Build on time & budget
Claim like it was a disaster
Upsetting the balance

15. Contract Cost
Claimed rights
Unclaimed
rights
Costs Margin

16. Contract Cost
Claimed rights
Unclaimed
Costs
Margin

17. Disruptions off the critical
path

18. A simple warehouse Logistical nightmare
9 Months  15 Months
20 M  35 M
All the owners fault

19. A Delayed Warehouse
No LD’s
LOP & Acceleration
Site overheads
The rent on the car of
the temp worker

20. A Delayed warehouse
within a successful
Airport build
Disrupted interior
works on floor 3
No LD’s
LOP & Acceleration
Site overheads
The rent on the car of
the temp worker

21. Disruptions off the critical path
Are broadly unaccounted for

22. Defining Disruption:
Disruptions (as distinct from delay) is a
disturbance, hindrance or interruption to
a Contractors normal working methods,
resulting in lower efficiency.
SCL, Delay and Disruption Protocol, Second edition

23. Rebalancing Contracts, in theory
Contract Event Damage Compensation

24. Changed scope Compensation
Delaying
“event” EOT LOP,
Acceleration
Scope
Time
In Practice

25. We calculate productivity through time
We calculate time through CPM

26. The Critical Path

27. The Critical Path

28. For every disruption on the
critical path - how many
disruptions occur off the
critical path?

29. Disruptions off the critical path are a
huge risk, liability or opportunity

30. Not looking wont save you

31. Contractual drawings: 529
New drawings (post tender): 623
Drawing updates (post tender): 886
Total new drawings & updates: 1409
Drawings updated unchronological: 27
Drawings updated without version update: 89
Individual change orders: 3423
RFI’s: 2422
• RfI’s not answered in 14 days: 1344
• RfI’s not answered at all: 466
Global Claim – Design Changes (owner design liability)

32. Updates (Green) & Completely New Drawings (Blue)

33. Challenge: How do you control
more activities?

34. How to control more activities?
Hide, shout and pray
Fully weighted up to date program throughout,
with full records and documentation
Dig Deep

35. You will only really know what is
there, once you get digging

36. Engage

37. Choose a prism,
dig deep and engage
Contract Collaboration
Program Controls
Design Documentation

38. Dig deep on design

39. Engage and track

40. Maintaining balance
Control uncertain
activities
Flexible & robust
Effective tracking
Communication &
Collaboration
Contract serves goals
Dig deep & Engage