Down by the Levee Zero Degree Constructors v

Down by the Levee Zero Degree Constructors v. Louisiana Amazing Levee Authority

Today’s Lesson Plan • Mock Trial 2016 NOLA learning objectives: • Risk is real – is now affordable – and now required knowledge • Schedulers are consigliore of the project team • Schedulers must articulate with multiple levels of audience • An Engineer is not a hired gun and has a higher calling to the public • An expert witness is not a hired gun and has a higher calling to truth • A construction professional fact witness must also remain non-partisan • The law usually says one may specify actions or results – but not both • The Spearin doctrine allows prescription or performance – but not both • We will examine if Spearin applies to a mis-applied scheduling spec

Our Panel • • • Hon. John M. Marshall - presiding Joseph Martin, Ph. D. , P. E. – design expert Gray Childs – superintendent for ZDC Gregory Shamoun, Esq. – for ZDC . tba. – for LALA Fredric L. Plotnick, Ph. D. , Esq. , P. E. – cpm expert for ZDC and moderator

Our Project • • We are rebuilding a levee with several pipeline penetrations The Louisiana Amazing Levee Authority (LALA) is the owner Zero Degree Constructors (ZDC) is the prime contractor Very Independent Utilities include Water Electric & Gas Authorities • • • Specification provides CPM – requires “Use all Time” LALA inspector interprets this means “no contingency activity at end” Contractor insists contingency needed as Gas Utility tends to be late CPM using all time submitted under protest LALA interprets it may defer permits and approvals to Late Finishes

Section 666 on Devil’s Curve of the Mississippi River Electric Water Gas Existing benched to replaced section New replaced section Existing concrete core – clay barrier benched geofabric reinforced fill soils to replaced deeply buried pipelines section Concrete core Bentonite clay Geofabric fill New gas pipe buried 3’ deeper

Do we have a Spearin Issue? • • Mac. Knight Flintic Stone Co. v. The Mayor, 160 N. Y. 72, 54 N. E. 661, 1899 United States v. Spearin (248 U. S. 132), 1918

Design of the Project Levee – Electric – Water – Gas • • • Reinforced levee design to prevent overflow and penetration Three major penetrations – Electric – Water – Gas – Bury all deeper Details of levee design – concrete core – bentonite clay – geofabric fill Details of electric design – multiple layers of insulation & water-proofing Details of water design – “double hull” protection from contamination Details of gas design – 100% weld testing – protection from corrosion To prevent penetrations from becoming channels. . benching at cuts To prevent penetrations from becoming channels. . follow sequence To prevent penetrations from becoming channels. . team effort required Existing benched to replaced section New replaced section Existing concrete core – clay barrier benched geofabric reinforced fill soils to replaced deeply buried pipelines section Concrete core Bentonite clay Geofabric fill New gas pipe buried 3’ deeper

Construction Means and Methods

Bench Steps Required at Either End

Construction Means and Methods Drive Piles Over Excavate for Concrete Core One Crane Envisioned

Construction Means and Methods Set Forms Pour in Place for Concrete Core One Crane Envisioned

Construction Means and Methods Wall Backfilled to 50 Year Storm Flood Wall Continues to 100 Year One Crane Envisioned

Construction Means and Methods Steep Slopes Require Geotextile Backfill & Native Grasses Limited Planting Season

Construction Means and Methods Water Pipe Scope Must Be Coordinated with LALA Concrete Core One Crane Envisioned

Construction Means and Methods

Construction Means and Methods Gas Pipe Scope Must Be Coordinated with LALA Concrete Core

Cross Examination

Why We Finished Late and With Additional Expense • • We are rebuilding a levee with several pipeline penetrations The Louisiana Amazing Levee Authority (LALA) is the owner Zero Degree Constructors (ZDC) is the prime contractor Very Independent Utilities include Water Electric & Gas Authorities • • • Specification provides CPM – requires “Use all Time” LALA inspector interprets this means “no contingency activity at end” Contractor insists contingency needed as Gas Utility tends to be late CPM using all time submitted under protest LALA interprets it may defer permits and approvals to Late Finishes

Can we make up time with Acceleration? More Equipment? Second Shift? Third Shift? Christmas Day? Hunting Season? Hell No!

Why ZDC Finished Late and With Additional Expense • Expert Witness Presentation by Plotnick • Voir Dire of Expert – Gatekeeper Function of Judge – Daubert v Frye • Voir Dire of Expert – Try to Humanize – Try to Distance from Fact-finder

Speak to the Judge and Jury • “Explain what is a ‘CPM’ analysis? ” • “What to you mean by ‘Float? ’” Or perhaps a Mardi Gras Float?

Why ZDC Finished Late and With Additional Expense • • Specification provides CPM – requires “Use all Time” LALA inspector interprets this means “no contingency activity at end” Contractor insists contingency needed as Gas Utility tends to be late CPM using all time submitted under protest LALA interprets it may defer permits and approvals to Late Finishes ZDC had <1% chance to finish by 21 JUL 16 ZDC did finish 05 SEP 16 but had right to finish 15 DEC 16. . acceleration

Risk and Monte Carlo Simulation B 10± 2 A 10± 2 B 10± 2 C 10± 2 D 10± 2 ≈ 40 Estimating D 10± 2 A 10± 2 C 10± 2 Scheduling 32 34 36 38 40 42 44 46 48 Project Duration ≈ 32 80% at 34 50% at 32 21% at 30 29 30 31 32 33 34 35 Excerpt from page 142 of CPM in Construction Management

B 10± 2 D 10± 2 A 10± 2 C 10± 2 Excerpt from page 142 of CPM in Construction Management

Risk in Scheduling? Where would I learn about that? • • • MON 12 - Preparing a P 6 schedule for Risk Analysis Presented by Darryl Townsend of DRMc. Natty & Associates, Inc. MON 13 - Microsoft New Project and Portfolio Management Solution for Construction Project Management Managing cost, schedule, task updates, risks and collaboration across project stakeholders MON 32 - Schedule Risk Analysis doesn’t have to be hard! All too often Schedule Risk Analysis (SRA) is only performed because it was required for a proposal. Once the contract is won SRA goes out the window. Where SRA is not mandated it may be ignored because it is perceived as a lot of effort for questionable return. This presentation will demonstrate the benefits of using SRA throughout the project life cycle and show that benefits can be achieved with little additional effort. Presented by John Owen, COO of Barbecana Inc. MON 42 - Doing a P 6/Acumen Risk Analysis Presented by Darryl Townsend of DRMc. Natty & Associates, Inc. TUE 13 - Deltek Open Plan Download to 1 st Update This session will lead attendees from download of Open Plan software from Deltek's website, or from the link provided in the back of of the text CPM in Construction Management, 8 th Edition, to delivery of the first update report to management of the Contractor and the Owner. Presented by Rob Edwards Risk Ready – Risk Integral – Risk Add-On

Risk in Scheduling? Where would I learn about that? • • • TUE 14 - Safran Risk analysis tools can be complicated. The complex interfaces and lack of process support can leave you wondering about the quality of your risk analysis. Did you capture all of your risks? Did you build the model correctly? In this session, you’ll learn how Safran Risk addresses these issues. You’ll learn how the process-led interface provides confidence in your risk modeling process, and you’ll learn new techniques for capturing all of your risks in the comprehensive risk register – including risk factors (uncertainty), risk events, and risk calendars. You’ll also learn how Safran Risk’s best-in-class analytics can provide you quantified insight into how risks are impacting your project. Come see why Safran Risk is defining the new standard in schedule risk analysis. Presented by Wes Gillette – Director of Client Services, Safran TUE 17 - Mitigating Delay Claims and Scheduling Best Practices Session addresses Claims and Risk Awareness, specifically as it related to construction scheduling. How to mitigate claims when construction change is inevitable. Learn about the principle causes of dispute and how to avoid claims as it relates to the project schedule function. Presented by Raquel Shohet, EI, PSP, of Hill International, with over 25 years of construction industry experience in the engineering, cost, scheduling, estimating, and field disciplines. TUE 33 - Deltek Acumen Risk: The Rewards of Schedule Risk Analysis CPM schedules are excellent at providing a completion forecast based on the planned duration and sequence of work. However, they fall short in accounting for external risk events – those discrete events that have an impact on a project execution teams' ability to execute the plan. This presentation focuses on the second step towards improving project maturity: identifying and reducing project risk exposure through project risk analysis. Learn best practices when running a schedule or cost risk analysis and hear how Deltek Acumen Risk and Risk book combine the accuracy of Monte-Carlo risk analysis with a straightforward, team-oriented user experience to simplify this process. Presented by Tom Polen

Risk in Scheduling? Where would I learn about that? • • • TUE 37 a - Who Should Own Float? Mitigating Delays by Float- Preallocation Method Float reduces risk by protecting against delays in network schedules. But who owns it remains a contentious issue. We will discuss the results of a National Science Foundation-funded research on allocating project float – between the sum of raw durations and the contract deadline – to the critical path. A mathematical model from social decision-making has inspired how to fairly allocate so that the critical participants can reach an evenly low risk level. Simulations validate the new approach. Presented by Gunnar Lucko, Associate Professor of Civil Engineering and Director of Construction Engineering and Management Program, Department of Civil Engineering, The Catholic University of America, Washington, DC 20064. lucko@cua. edu TUE 44 a - Risky Project Risk Analysis and Risk Management Software Risky. Project is integrated project risk management and risk analysis software. Risky. Project facilitates all steps of project risk management process: risk identification, analysis, mitigation and response planning, and risk communication. Risky. Project performs both qualitative and quantitative risk analysis. It performs schedule and cost risk analysis using Monte Carlo simulations. Risky. Project’s risk register includes all information about risks. These risks can be assigned to project schedule and used in risk analysis. Presented by Lev Virine of Risky Project TUE 44 b - PMA Netpoint Risk WED 13 - Doing a P 6/Acumen Risk Analysis Presented by Darryl Townsend of DRMc. Natty & Associates, Inc. WED 23 - Project Risk Analysis with Risk Events Step by Step Efficiency of project risk analysis process depends on how project uncertainties are identified and modelled. Uncertainties in task durations and costs can be modelled using statistical distributions. Uncertainties can also be modelled using discrete risk events (threats, opportunities, or both), which can be assigned to the project tasks and resources. Presented by Lev Virine of Risky Project

Theory Applied to this Case -15% to +20% B 10± 2 A 10± 2 D 10± 2 C 10± 2 MONTE CARLO FOR PRIMAVERA Copyright (c)1991 -1999 PRIMAVERA SYSTEMS, INC. ------------------------------------------------------------------ZERO DEGREE CONSTRUCTORS MONTE CARLO PAGE 1 LOUISIANA AMAZING LEVEE AUTHORITY ENPROMAC, INC. REPORT DATE 23 JAN 16 CRITICALITY PATH REPORT : MAJOR CRITICAL PATH RUN NO. 3 ------------------------------------------------------------------RELATIVE PCT PREDECESSOR REL PCT FREE ACTIVITY DESCRIPTION CRIT ACTIVITIES DESCRIPTION TYPE CRIT FLOAT ---------------------------------------- -----2225 LEVEE EARTHWORKS 64 2215 2220 MISC SCOPE LEVEE EARTHWORKS FS FS 0. 0 0 64 6. 1 0. 0 2230 LEVEE EARTHWORKS 64 2225 75307 LEVEE EARTHWORKS MISC SCOPE FS FS 0. 0 64 0 0. 0 207. 9 1300 LEVEE EARTHWORKS * 100 2190 2230 2470 2530 3065 3390 3535 4145 4205 LEVEE EARTHWORKS GAS LINE RELOCATION LEVEE EARTHWORKS GAS LINE RELOCATION FS FS FS 0. 0 0 64 0 0 0 37 15. 8 2. 5 118. 8 88. 3 37. 7 121. 9 29. 5 18. 3 6. 1 1305 LEVEE EARTHWORKS 100 1300 79007 81107 81207 85207 LEVEE EARTHWORKS * MISC SCOPE FS FS FS 0. 0 0. 0 100 0 0 0. 0 274. 6 244. 1 244. 0 1330 LEVEE EARTHWORKS 41 1320 1315 1310 1305 95107 LEVEE EARTHWORKS MISC SCOPE -5% to +200% Alternate Probable Critical Path FF FF FF FS FS 5. 0 0. 0 10 100 0 0. 5 0. 0 289. 8

Oracle Primavera (Pertmaster) Risk Analysis Earthworks: 17<20>24 Gasline: 19<20>40

Baseline Critical Path

Oracle Primavera (Pertmaster) Risk Analysis Baseline Critical Path with Pessimistic Durations Highlighted

Oracle Primavera (Pertmaster) Risk Analysis

Other software product vendors agree

Other software product vendors agree

Other software product vendors agree

Other software product vendors agree

Legal Argument by Attorneys

Brief to Court • PRO • CON • • • More like Mac. Knight than Spearin Contractor gave actual concerns of flaw Need for contingency supported by analysis Analysis supported by Peer Review • • • Contractor gave anecdotal re flaw but did not hire Plotnick in advance to persuade Contract says USE ALL TIME Contract gives all project float to owner Many Gov Agencies use this clause in spec Spearin Doctrine disputed in many Law J’s Spearin Doctrine 100 years old – time to review This is LALA’s project – money – rules

Decision Time

Questions? ? • Fredric L. Plotnick, Ph. D. , P. E. , Esq. • fplotnick@fplotnick. com • 215 -885 -3733