← Construction Leaders Podcast
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- [00:03]
A
Welcome back to the Construction Leaders podcast where we explore the people, ideas and trends shaping the future of construction. I'm Evan Hendershot and I'm here with my co host today, Nick Soto. Hi, Nick.
- [00:12]
B
Hey, Evan. Happy to be here.
- [00:14]
A
In today's episode, we're excited to welcome Brian Hannifin and Rachel Domingo from litcong Group to discuss how construction managers can document the real story behind project delays and disruptions. The discussion breaks down practical methods for capturing impacts as they occur, translating field conditions into defensible records, and distinguishing between delay, acceleration and loss of productivity. Brian and Rachel, welcome. Thank you so much for joining us today. And we were hoping you could start off by briefly introducing yourself to our listeners and sharing a bit about your background.
- [00:45]
C
So, thanks. Yeah, we're both at the litcon Company, which is litcon Group, which is a vertex company these days. My background has about 40 years of experience planning and overseeing PM and CM construction projects and providing construction litigation support services. I've done a lot of work in the, in the areas of, in the field of construction management. I've testified as an expert witness in the areas of construction project management and CPM scheduling. And I've done some guest lecturing at industry seminars related to value engineering, CPM scheduling and project management. Over the years, I've also served as an adjunct professor at Columbia in New York City, teaching a master's program, courses in CPM scheduling and project management. I've been a member of CMAA since I really longer than I want to admit, since 1987. And I was pretty proud. In 2004, our project team won one of the National Project Achievement Awards for project management in the $100 million category.
- [01:45]
B
CMAA was formed in 1982. So you were one of the founding fathers of CMAA says we suck you.
- [01:52]
C
I know. And I, and I, and I know this is audio only, but I do have the gray hair to prove that, so. Understood. So anyway, I've been involved with CMA for a while, very proud of that affiliation. And I was also, if I don't mind saying, I was very happy and very honored to be inducted into the CMAA College of Fellows just this past year. So long history. And I'll turn it over to Rachel. She's got a back brace on because she's carried my load, at least for the last 10, 11, 12 years. So I'll. I'll turn it over to Rach, I
- [02:20]
D
was going to say, speaking of history, of your 40 years, I think I've been following you about 15 years now I hate to put a number on it, but hi everyone, I'm Rachel Domingo and I started this career path with some construction management experience. So I was on the field a lot. Brian and I were with a construction management firm and I think from there kind of transitioned into the claims world. So now primarily I'm working in forensic schedule and delay analysis, evaluating critical path delays, repair durations, and just making technical issues clear and defensible for claims evaluation. So that could be mediation or expert testimony settings, something formal like that, or even something informal. So we're really excited to be here and share some war stories with everyone.
- [03:13]
A
Yeah, well, thank you for joining. We're really happy to have you today and we'll just jump right into it. So when a CM senses that something's in a project is off, what are the very first signs of disruption or delay they should be looking for? Brian, we'll kick off with you here.
- [03:27]
C
Sure. Well, you know, I have to start that answer by saying that it's been an old adage from years ago from Jim o', Brien, my old mentor who wrote the book on CPM and construction management that, you know, scheduling is at the foundation of everything we do as construction managers. So I'll just offer as a, as a starting point that a close monitoring of the schedule by the CM as agent, representing the owner's interests on an independent basis is always the key. Monitoring the schedule in real time, monitoring and making sure updates are appropriate are always going to give you the first indication of some of those things that, that you need to be looking for, like out of sequence work, like crews waiting on materials or other problems. But I think that's the first key is it's staying just very tuned into the project schedule. That's your job, but you have to do it. So it's very important to be diligent
- [04:19]
D
and I think it's important to use the schedule with the other tools that you have. So just to give an example, a project that I'm working on now, they were very diligent about updating their schedule and where they started to catch a disruption. Becoming a delay was like you said, repeated start and stop. So they had a lot of rain events and eventually over time, update after update, they're starting to realize things are slipping and they got to the point where, okay, this isn't just a disruption anymore, this is going to begin to affect project completion. So I think it's the schedule in combination with your experience and other things happening on the site for you to kind of catch that Something is going south and you need to do something soon.
- [05:03]
C
And as a last note to that, right, Rache, I mean, if there's activity slipping in terms of starting dates or finish dates or extended durations, if there's no clear expectation or explanation for that slippage, then you realize you have a bigger problem. I mean, if there's something, you know, sometimes things happen. That's why the schedules are dynamic and that's why you have to monitor them in real time.
- [05:24]
B
Let me ask a follow up question, Rachel. Is that patterns tend to precede major delay events. Are there any like, indicators for cultural or behavioral things that will trigger that things are going in the wrong direction?
- [05:39]
D
That's interesting. I guess it's, it's, it depends on your experience. Right. So in the project that I had in mind when we're talking about this, these guys are utility contractors. They work along the river in New Jersey. They know that soil. They had a few rain events and I think it was just instinct where they knew that this was the one rain event that's going to put us over. There was just so much dewatering they couldn't catch up with. And they knew from that point forward that they, they wouldn't be able to mitigate it. Right. Because I had asked them, we're helping them put together a builder's risk delay claim and I had asked them why this rain event as your loss event? Why not the 30 previous. You know, for the two years you guys have been out there, this isn't the first time you guys were flooded out. I think that was the point of no return, I'll call it. So I think it's a combination of instinct and historical data that lets you know, have we gotten too far south to fix it?
- [06:36]
C
And if I might jump in there too, it's interesting because you're going to find a lot out, even at the early kickoff meetings. And when you start having the project team assemble and you start seeing the dynamics that exist between design teams, trade teams, independent consultants, when you start, you see the personalities start to evolve and emerge and you can see how that sometimes translates into coordination and cooperation in the field. So you talk about patterns there, Nick. You can get to the root of a lot of that from early on kickoff meetings and early and especially if you're retained during the pre construction phase, you can see how people perform when they're at their best and you can see when the honeymoon is somewhat starting to slide away.
- [07:23]
B
So yeah, that this is great because it leans right into a sub series that Evan and Carly are about to start around the McLean curve and getting into the project early to make the decisions. And so yeah, the audience can be looking out for that. That'll be our video podcast on the decisions that you didn't make and that's coming out here later this year. But Brian, let's continue with you on why is contemporary documentation so critical and what makes it more reliable than records recreated after dispute arises?
- [07:54]
C
Well, we've always followed the old adage and it's never been proven wrong that the information that comes from closest to the field is the most reliable. It's generated in the field, it's generated contemporaneously, it's, it's, you know, field notes, emails during the course of construction, daily reports that are done properly, I'll make a focus on that. Properly done daily reports, the type of information that's basically, you know, when you're on a job site, you know, you're there, the cm, you're in the middle of that triangle, you know, that owner at the top, design and construction to the bottom parts of the triangle and you're right in the middle. You're there to control the flow of information. When you see the information that comes from the field, from the guys who are really trying to get the information, to the guys in the tool belts that get the job done, that's the most reliable information. The information that comes perhaps after a dispute, even small dispute information that gets generated further away from the field. And ultimately if it comes from, no offense to attorneys, we do tend to swim with the sharks a lot in what we do. But that information tends to be much more self serving and less related to actual facts that are happening in the field. So I think that the general rule of thumb is information closer to the field will give you the more realistic story of what's actually happening in the field.
- [09:16]
D
I think also distance from field and you have to think about timeline too. So like when a dispute arises, you poured the foundation what, six years ago and you're trying to recollect like what issues arose during that. And you know, while some, I don't doubt that some project managers really do remember the intricacies of the site. There are some that have several projects going day to day and just can't recall the specific details that we would find in something like a daily report. We also have to consider like how late those disputes come about from the activities, you know, we could be fighting about design errors and omissions when the project had its TCO like three years ago. So I think it's really important that we have those contemporaneous documents.
- [10:02]
A
And from a forensic perspective, what kinds of daily documentation tell the clearest story of how an impact unfolded?
- [10:10]
C
You know, daily reports are always, I think, the best contractors. Daily reports, to the extent they exist, and you always want them to exist, they are basically going to tell, you should tell you exactly where the crews are working, where they were working, what they were working on. And you're, as a cm, you have an obligation to provide those types of observational reports as well. And you know, we always have to remember that when you're documenting a project during a course of the job, I think even the CMAA promotes that acronym, fat. Fat. It needs to be factual, accurate and timely. No opinions. You know, you have some observations and sometimes you think you're going to inject something, what you think is going on. Just making an old reference, probably older than anybody on the call, but the old Dragnet reference, you know, just the facts. Just the facts.
- [11:01]
D
I personally like the meeting minutes because they'll, when they do the ball in court thing, like so and so, supposed to submit schedule this week and then you'll see it carry on week after week in the meeting minutes. So when I'm looking for like a specific story to unfold, I think meeting minutes, what I'm looking for, say, like I'm rebuilding activity durations, I'll use the daily logs. But the meeting minutes are always a little juicier, in my opinion.
- [11:29]
C
And you know, when we get involved on a forensic basis, Evan, you know, with the various different project management platforms and tools, procore, for example, when we have to search through documents, I say we, when Rachel has to search through documents and find some key information, you, you know, they can get quite colorful. Those emails that get generated by project managers when they're having a little bit of a dispute, you know, they have some rather colorful acronyms, but they do contain pretty good information because they're coming from the field. And as long as they relate to some facts that you can then corroborate with actual field data, then you're in a good spot forensically. You know, there's a lot of agendas that can exist on a job site. And I even think another CMAA reference, I think, you know, when you can control the minutes, you control the project. So as a cm, you may not be the person charged to author the minutes, but you certainly have a strong capability to control those minutes to make sure they're accurate.
- [12:25]
B
All right, now I've got to jump in because we are association professionals, Evan and I, we work for association nonprofits. And the way we do minutes is high level. Like what goes in the minutes is very different than I think what's going into your minutes because what you're preparing for is the same thing we're preparing for is that it's if they should be taken into litigation, you need to be careful in what they say and very prescriptive on it. Can you describe a little bit about what goes into your minutes versus something like an association which just keeps what the topic was in the vote that happened at that point in time?
- [13:01]
D
I think Procore has at least the ones that I've been working with most recently, they kind of have categories, right. So there'll be a section for submittals and it's going to talk about who owes who what. And then the next section will be procurement items. So what's on the way? When are we expecting deliveries? And again, I mentioned this because the reason I like minutes is it'll say what happened last week versus what happened this week. So then it'll talk about progress on the field. Oh, this week we poured this building pad. Next week we're moving to this area. Just general like housekeeping items, who still owes us a schedule, who's waiting like, you know, for certain inspections or whatnot. So it kind of tracks it based on, I would say, phases of construction or sometimes we'll see them by subcontractor. So like the electrical guys waiting for this. So they are much more detailed than association minutes, that's for sure.
- [13:58]
C
I also think that, you know, if you have input to how to structure those as well. I know Procore has the preset templates, but. But if you have input on how to structure the field minutes of meetings, always having a section on schedule up front I think is very important. I know there's a tendency to have separate scheduling meetings. I think it's very important to talk about schedule while you have everybody in one room that's running the job as opposed to just somebody maybe saying we're going to have a scheduling meeting and then just send the schedulers. No offense against the just schedulers, but schedulers need to be present with the people doing the job so that we can integrate the schedule status along making sure that it jibes properly with the actual status in the field.
- [14:40]
A
Well, let's shift gears a little bit and ask how can CMS distinguish between true delay, simple disruption and early signs of productivity loss in the field?
- [14:50]
D
I think it's important because delay and disruption, those words kind of get tossed around as if they're interchangeable and they're not. So I think we should lead it with let's talk about definitions. Delay is about the project end date. Keep it simple. Disruption is about workflow and sequence, and then productivity is about efficiency. So I think as a cm, if you can identify which one you're dealing with in real time, you're already ahead in most projects because not every bad day on site is a delay. It could just be a disruption. It could just be a productivity loss where you're not moving as efficiently as you thought you would, and you'll have a chance to mitigate that later. But I think it's important that every delay usually starts as a disruption. So it's important to be aware of, you know, those definitions so that you can see them kind of transition from one to another. And like we were talking about earlier, that point where you're just too far south to recover.
- [15:53]
C
I agree. And also when Rachel talks about definitions, it's so important as the CM to maintain that independent view on the project schedule. Not every activity delay is a project delay. And sometimes we tend to be on job sites where everybody claims every delay is a project delay. So it's our job as professional cms to provide that perspective, to provide that independent assessment to the owner that, you know, you're hearing a lot about delay on the job. It's just a slippage on a small couple of activities. It's not a project delay at this point, but we'll stay on top of it anyway, and that's our job.
- [16:30]
B
Well, speaking of the job, if a CM notices that or can sense the disruption is coming but can't yet quantify it, how should they react? Are they documenting it first? Should they escalate it quietly? Monitor, adjust, sequencing? What do you think, Brian?
- [16:46]
C
Oh, I think that if you see an activity delay that's an activity or a group of activities have slipped or starting to slip, I think as a cm, you need to be proactive and call a meeting to discuss just that issue and focus everybody with laser like intent on just that issue and get to the heart of that. Like we said earlier, if you have activities that are slipping with no explanation, that's our job to get in there and find out the explanation for it. And I think that that's your job as the CM to do so. You know, you're going to use the project schedule as approved, the baseline and approved updates, but shadowing that schedule as a CM to say, wait a minute, Something on this last update doesn't exactly jibe with what we've statused the project as. So let's get together and talk about that and call that meeting quickly. There's no substitute for just getting in front of people, having a face to face meeting and discussing the issue and getting to the heart of it. And you know, our job is to provide the information from the design team and the owner to the contractors so they can build the project on time and under budget and hopefully free of dispute. So it's on us to do that on an independent basis. I would say so.
- [17:56]
B
On the same note, how can CM strike a balance between documenting impacts thoroughly without overwhelming field staff with all the administrative work that goes along with it?
- [18:06]
C
That's a very good question. And if I might, let me start that one off by saying that a lot of the framework and housekeeping for this type of issue can be handled at the initial kickoff meeting. You know, everybody's shaking hands, everybody's having a groundbreaking. And you need to talk about some more difficult issues at that kickoff meeting, such as notice, you know, notice, notice, notice. You need to talk about it, you need to talk about it in the context that it's not a bad thing. You need to talk to the trade contractors that if there's a notice requirement, go ahead, you need to comply with that. It doesn't mean you're automatically going to file a claim, but you do need to provide adequate notice so that down the road, if a potential change order negotiation turns into a claims negotiation, that you've pretty much set the groundwork for that with a proper notice requirement because you don't want to overwhelm people, but you need to remind people that it's there for a reason. Now an owner might say, well, if they missed notice, it's on them. Why you want to warn them of that? Well, because that's appropriate. That's the contract. It's mutually accountable, the contract in that regard. So I think a lot of this starts off with the initial project and how we're documenting what kind of workflows exist. Reminding people if it's in the contract at the CM marshals the effort on all of the information. Fine. If it's not, if it's point to point, if it's from the trade contractors directly to the design team on submittals, making sure that we're copied so that we have a trail on those transmittals. Just making people adhere their contract shouldn't be overwhelming. It should just be making people adhere to the contract.
- [19:46]
D
There are so many documents. Like, we love documents, right? We have like all kinds of reports and minutes and, you know, when there's delays or when something goes wrong on site. We're not asking for like a new tracking document. The last thing we need is one more Excel tracker on our desktop. Right? We're asking you to incorporate it into the daily report, to bring it up in the weekly owners meeting so that it makes it to the meeting minutes, or to send a clear email with a clear subject about a potential issue arising, like not asking for anything fancy. So I think the part that makes it less overwhelming is to just utilize the tools that you have. The schedule is there for a reason, add an impact activity. The meeting minutes are there for a reason to talk about potential delay issues. So we're not asking CMS to add more to their what's already a full plate. We're just asking to utilize kind of the tools that you have and communicate better when issues arise so that in a forensic world, five years after the fact, we could easily track what was deterring the project back then.
- [20:57]
C
I think also it's important for CMS to maintain the professional CM status and role is not to slide into a purely clerk of the works mentality where you're just there to record equipment, labor, equipment, materials and such. You need to be the independent, trusted advisor to your owner. So I think that by guiding the trade contractors and the design team on the appropriate kind of documentation, that's very important. You're just not there to be reactive. You're there to be proactive as a cm.
- [21:31]
A
Speaking of the appropriate kind of documentation, when disagreements arise over what caused an impact, what objective records or metrics typically make the biggest difference in mediation or arbitration?
- [21:43]
C
Oh, boy. Well, accurate information. How's that for a quick answer? And as we've said, the most accurate information is that which comes from the field, which is corroborated by the actual measurement of job progress through the project schedules. Approved project baseline schedules and update information is pivotal. Of course, you know your year as a cm, you want to marshal that effort to get that baseline schedule approved as soon as possible, not linger, unfortunately, on a forensic basis. And Rachel will attest to it, we get involved in a lot of projects where we don't have an approved baseline schedule for six months to a year into the project. You know, that's really never a good thing. And we really don't want to get into that mindset where we say, well, this is what should have been the as plan schedule. That's never a Good thing you want to use the project documentation. So I would say the schedule, the daily reports and those information, the information is contained in those. All those logs that are transmittal logs, correspondence logs, RFI logs, factual information from the field, correspondence from an attorney to another attorney. You know, you place the proper weight on that and in many cases, not much.
- [22:54]
D
I agree. I think you have to think about what, like when we say what caused the impact, right. If we're talking about something related to design, we're going to go back to those submittal logs. Like, how long did it take to bounce things back and forth, how many. We'll rely on the drawings and usually the title blocks to see how many addendums were issued, how many times were these things revised. So that's on the design issue side. And then when you're talking about, you know, field conditions, I think that's when we rely on things like daily reports and photos and the schedules for when we actually get into construction. So you have to think about what your impact is and what is the closest field document to support the as built data for that impact. That's why, unfortunately, we have to look at every single document on a project when we're rebuilding something forensically because. Because it might be a daily report, it might be a submittal log, it might be an email, it might be a change order. We don't know. So we just have to look at everything.
- [23:52]
C
And what I was going to add to that, Rach and I would be, and I think you would agree, we would be remiss if we didn't say in terms of that scheduling documentation, in order to assess the time impact analyses, that we would probably do a Windows analysis using the CPM schedules. It's so important to have the native files that. That exist as opposed to just PDF copies of the schedules from a forensic basis. Because, you know, a lot of people play a lot of games behind the screen, so to speak, with the PDF schedules. And you don't really get a handle on what the true relationships are between activities. And when you're in a courtroom setting or a mediation setting or an arbitration setting, then you're sitting there testifying as the subject matter expert or scheduling expert. You better have a rationale for exactly why you feel something is a delay and how you quantify it. So it's important to know all those things that went into the project schedule from the contractor's perspective and the owner's perspective.
- [24:52]
A
Well, we've just got a couple more questions for y' all before we wrap it up and let's talk about outcomes. So can you share an example of project where strong CM documentation changed the outcome of a dispute?
- [25:04]
C
I'm going to offer Rach the project we did for SUNY Albany. It was about a $50 million housing project on their campus. And I'm going to share with it because it was one of the best examples of how the owner appreciated the presence of the CM and the CPM scheduling effort behind that. We were involved in every project meeting and every important field meeting that existed and we just resolved the dispute all along the way. And there was never dispute on a project that ever lingered. And I think that's pretty much a testament to staying on top of the schedule, having the entire project team buy into that concept and resolve things as they arose and that job finished on time, under budget and out of the courtroom. And that was a pretty good project. It works.
- [25:54]
D
You know, I agree. I think, you know, being being involved throughout the whole process because day to day there's going to be things that affect your project and I think you need to have everyone there to understand when these potential delays start to unfold because some people will have a stronger opinion or a little bit more knowledge about it than others. So I think the fact that, you know, those meetings were so open, Brian, and everything was so transparent, that that's why things were so successful. Because we've seen kind of the opposite side of that where things aren't shared as openly and then what was a disruption is now like a two month delay and you're kind of past point of doing anything proactive about it.
- [26:42]
C
And listen, I've been enough involved in enough projects and even, even had interviews with say, boards of education on projects and some, maybe somebody on the board might say, well, if we hire you as our cm, there'll be no disputes. And I would often say to them saying, if you're hiring somebody who's going to say there's going to be no disputes, run like hell from that person because they just don't have the field experience. The key is you're going to have disputes. And that's when I think professional cms really prove their mettle. How you handle those and how you mitigate those disputes, you go in with your eyes wide open. You're going to have issues, experience and professionalism will help you resolve them and take them head on and resolve them on the spot.
- [27:26]
B
I'm pretty sure Joe Sebald has said the same thing. If you meet somebody who says there's not going to be any Claims or disputes just run like hell. So I have one last question for you. We'll start with you, Rachel, and I want to hear from you both though. So my last question for you both is, with increasing project complexity in all the new digital tools, how should documentation evolve over the next five years?
- [27:48]
D
I hope that it becomes more streamlined. So a lot of the issues that I think we have now is just like data overload, which isn't a bad thing. I would say processing it from a forensic aspect is where the challenge is because we have so many sources of data and sometimes things don't align. And when we're talking about quantum quantifying delay days, sometimes that 15, 20, 30 days or when something started is very relevant for the final calculation. So we find that subcontractor daily reports, for example, don't exactly match the template of like the primes, dailies, and then something completely different in the monthly reports. And you know, I've been doing this long enough that I've seen Procore kind of evolve a little bit and get better with their templates so that it tracks more consistently throughout whatever format you're coming in through. But I'm hoping that sooner or later this advancement leads us to more streamlined, consistent information between all the kinds of reports that we have. Because that's unfortunately, I think where my biggest challenge is forensically is I have a schedule that says that, you know, you hit an obstruction on this day and then I have a daily report that says that happened two weeks later, later, and I don't know what's what. And then next thing you know, I'm looking for pictures and it's a lot of time wasted trying to see, okay, when did they hit that obstruction. So that's my hope for technology advancement.
- [29:26]
C
That's a good hope. I think the technologies, you know, it's, it's a little bit of a double edged sword. But for example, and I know Rachel knows I'm a fan of 3D laser scanners and documenting projects, whatever templates we have, technology wise, that can provide information that is completely incontrovertible. If you have a date stamped 3D laser scanner or something, taking pictures from the same vantage point every day, and it's date stamped that says on April 15, this is what you were working on then, that's what you were working on. And nobody can dispute that. So the assembling of the data, that collection of data, if the technology can streamline that effort, great. But we can't lose sight on, it's got to be factual, accurate, and timely no matter what technology we use.
- [30:18]
B
Well, Brian and Rachel, this has been awesome. I really want to thank you for breaking down such an important and often overlooked part of the job. Today's conversation focus on helping CMS capture the story behind delays. We talked about recognizing early signs of disruptions and documenting impacts as they happen, and translating field conditions into defensible records and clearly distinguishing between delay, acceleration and loss of productivity. Because at the end of the day, strong documentation isn't about paperwork, it's about clarity, credibility, and protecting the integrity of the project. The strongest CMS don't document because they they expect to fight. They document because they understand the clarity protects momentum. And that's a wrap for today's episode of the Constructional Leaders podcast. But on the next episode, we're diving into CM's roles and responsibilities and the risks considerations construction managers need to be thinking about every single day. Role clarity and risk exposure go hand in hand, and we're going to unpack them both. If you found value in today's episode, be sure to subscribe and share with a colleague who needs to hear it. Follow CMAA MAHQ for updates and leave us a review to let us know what you think and what stood out or what decision you think you'd like us to unpack next. On behalf of cmaa, I'm Nick Soto with Evan Hendershot, and thanks for being part of the conversation.