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18/10/21

You never said you were going to do THAT ...

You never said you were going to do THAT ...

The magic of a comma:

  • What could we do without a plan ...?
  • What could we do without, a plan ...?

Too often we start with the former and end up with the latter and are hard put to know the difference until the skeletons are being cleared out of the cupboard. Of course 'we' in this sense means 'you' - the term is just used to sound inclusive. I, being an expert, do not have to make plans[1] - I just take pot-shots at the shortcomings (usually) of others.

The quantum expert usually arrives at the cupboard clearing out stage and is trying to answer some question such as:

  • Was the cost incurred reasonable? or
  • What is the reasonable cost to remedy the breach/defect?

As I have touched upon in earlier pieces the quantum expert's life is not an easy one - no-one is thinking of him/her when trying to get the job over the line. So, folks such as myself arrive and try to understand what happened and where the money has gone and whether it is 'reasonable'. Previously I have looked at the reasonableness of Payment and of Scope - today let's look at the Plan.

It does not help the testing for reasonableness if the claimant (or counterclaimant) has spent money in a random fashion on stuff that seemed at the time to be anywhere between 'might be handy' and 'mission critical'. All kinds of things may help the project forward but the fantastic, and fantastically expensive, team weekend in Paris will always be a challenge. It may better stand up to scrutiny if it can be seen to be planned in advance as part of a team building event reflecting the multicultural diversity of the newly established emergency remediation team of technical specialists and coupled with some hands-on training with the Freyssinet hydraulic jacking community.

And - casting my mind back to when I was checking daywork sheets on the site of a structurally compromised newbuild office block in Glasgow, which was indeed being supported by Freyssinet jacks - such an outing would have been highly motivating and welcome.

Why, I hear you mumble, is the quantum expert holding forth about plans? Plans are clearly in the territory of a delay expert. Well not altogether - there are plans and plans. The quantum expert is less concerned with the arrangement of coloured stripes on graph paper than the evidence of some intent to do something. That something possibly being an activity that might help progress the remedy to the offending breach or defect.

It makes so much difference to passing the after-the-event test of reasonableness if there is an articulated plan of how the remedy will be achieved. A claimant is much better placed if there is a record of:

  • Acknowledgement of the issues
  • Investigation
  • Consideration of alternative remedial measures
  • Time and cost estimates of alternative remedials
  • Decision on which is preferred
  • Consultation with stakeholders.

Writing it up after the event is not good enough. It is not necessary that the plan is definitive or even that it was implemented, and worked, it just needs to show that reasonable people considered the requirements and the options and came to a rational decision under the circumstances. This would seem to be no more than would be required by any commercial or professional enterprise faced with unforeseen difficulties. In practice we find that companies are unable (or possibly unwilling) to lay their hands-on decision-making records that would assist the quantum expert, themselves, and the dispute resolution process.

And, yes, the quantum expert is interested. He is not going to regard costs as reasonable if they result from unplanned and ill-considered knee-jerk decisions to carry out works which prove ineffective. If the very same works are carried out, and are equally ineffective, as a result of a reasoned plan to test, for example, a low budget quick fix before engaging high-cost alternative solutions then the costs may well be reasonable, albeit they are wasted.


[1] Well - maybe I do - but that is a separate story.

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Articles  /  Digest  /  Europe  /  Global

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