The first post in this series addressed the Triage Assessment ProcessTM. This post delves into the critical topic of assembling the team of players that possess the appropriate skills to reverse the project’s course.
The Project Manager
The Project Manager (PM) is a crucial player. The PM must use his experience, steady temperament, and great organizational skills to bring the team together to rectify the situation.
Figure 1: The PM’s ability to turn the team into a cohesive unit, define realistic expectations, and continuously communicate the progress and challenges to the team and the Owner are keys to a successful process.
The Forensic PM’s role requires the following attributes:
- Leadership. The PM must lead and coordinate the Triage Team™ of a forensic architect and engineer, forensic accountant and cost consultant, senior construction manager, forensic scheduler, field personnel, and others who may be already engaged in the work or who are new to the Team.
- Comprehension. The PM must fully digest and understand the roles, responsibilities and performance of the key players involved in the design and construction of the Project to identify those parties (individuals or entities) that are either part of the problem or part of the solution. In a troubled Project scenario, during the Triage Phase™, knowing the strengths and weakness of your key players is paramount to developing a successful and realistic Recovery Plan.
- Objectivity. The PM must place individuals in roles based upon their ability to be independent and objective in their assessments and without conflicts of interest.
- Communication. The PM must deliver clear and assertive directions to drive the job and make timely and decisive recommendations for Project recovery while communicating effectively with the Owner’s executive team at appropriate intervals.
- Experience. The PM must understand and have experience in design and construction management along with first-hand experience in claim forensics and litigation requirements.
- Manage Upstream. The PM must enlist and keep the Owner’s experienced executives, including legal counsel, informed and prepared to act swiftly in responding to the Project’s needs during TRI™ and to protect and marshal all information and documentation to protect the Owner in the unhappy event of litigation later.
The Legal/Forensic Team
The troubled project is now considered a forensic site, containing evidence for analysis and certain realignment of contractual relationships, either by agreement or by enforcement, so it is essential to work closely with the owner’s counsel.
The construction lawyer, either in-house with the executive team or, preferably, an independent qualified construction lawyer with experience in the complexity of troubled construction projects, represents the Owner’s interests. The Owner’s legal counsel is independent of the TRI Team™, but works in concert with the team, making recommendations to the Owner. Only by engaging experts through litigation counsel will the Owner be able to maintain the level of confidentiality required in anticipation of litigation.
Preserving the “evidence” at the site is one of the tasks for the TRI Team™, and preservation of such evidence becomes part of the PARP™ report and re-baseline analysis. Claims from all parties must be evaluated and managed for settlement or a decision by arbitrator or judge. The Owner’s best interest is served by the PM’s orchestrating the evidentiary analysis and protecting the collaboration of all forensic professionals on the Triage Team™.
Clear and convincing evidence collected by reliable methods is the least expensive way to resolve claims. Evidence that can clearly stand up in court and convince a jury is the best way to avoid the expense of litigation. As the process evolves, the forensic professionals must be free to explore all ideas and opinions without concern that any unavailing ideas or improperly evaluated matters could improvidently find their way into court. This collaboration provides the Owner with a realistic picture of its claims and defenses so that the Owner can determine whether to press a claim or to settle if the facts do not soundly support the claim or defense.