Contractors seek out projects, bid and bargain for them, and once awarded, staff and manage them, close them out, then repeat the process. What fuels this cycle are the fees and profits earned by successful projects. In all of their various project roles and responsibilities, contractor staff and management develop core competencies and expertise to serve their employer’s interests as well as that of their clients. Success depends on all of these individuals doing their jobs and doing them well. But, let’s face it, like everything in life, some are better at it than others.
For contractors who have more than one project ongoing at a time, that often means there are projects staffed by “the B Team,” or another letter further down the alphabet. The risks to contractors are now far too significant to allow anything less than their best efforts on projects, and this requires the right staff for the right positions. Under these circumstances, contractors can borrow strategies and approaches from other disciplines to protect their bottom lines and that of their clients, ensuring that a critical eye is brought to the process and they are protected from costly claims.
POLICING PROCESS
An approach used in other disciplines to police process is called “red teaming.” Red teaming, as a practice, dates as far back as the 11th century, when the Vatican used a similar methodology for apposition argument to discredit candidates for sainthood. Today, red teams are used in the military, intelligence community, cybersecurity, and other professions to turn a skeptical eye on the interests, intentions, and capabilities of institutions to prevent surprise, assault or improve process. Simply put, a red team is a group of individuals outside of the normal routine who look at issues with a fresh perspective, ask questions, seek clarification, and challenge assumptions that occur due to rote repetition or over-familiarity with a topic. Red teams run simulations, vulnerability probes, and develop alternative analyses, with the aim of aiding in identifying weaknesses, challenging assumptions, and anticipating threats. This same process can bring value to the construction community in a number of ways, and at a number of critical decision points.
ASK THE HARD QUESTIONS
From the outset, contractors should consider taking a red team approach to development of budget, estimates, and schedule. These three things will drive whether the project will make or lose money. While many contractors use a committee approach to reviewing pricing and take-offs prepared by their estimators, instead of rubber stamping this, employ another group to check numbers, ask probing questions, look for potential change order, delay or supply chain issues, and disruptions. If the design is incomplete or lacking in sufficient detail, either get clarification or include a robust contingency to address the inevitable issues that will arise as the project evolves. Asking hard questions on these topics will set the basis for success when appropriate allowances are built into the budget and sufficient time exists in the schedule to complete the work.
CONSTRUCTABILITY REVIEW
Projects and the products that go into them are getting more and more complex. While the design is underway, perhaps in a design-build setting, performing a constructability review could pay big dividends in the long run. Alternatively, suggest to the owner/client that the constructor have such a meeting early in the programming phase with the design team. Scrutinize design elements, components, products and systems, and verify with subcontractors or trade partners they are able to build the element set out in the design, safely, cost-efficiently, and in a way that meets the owner’s objectives. Further, ensure the products are available, are not significantly delayed, or will cause issues with acquisition due to market conditions. If so, alternatives need to be considered and that takes time. This should go beyond merely value engineering analysis, and should focus more on the practicality of the design, products, and solutions to build the job.
LOOK AT COMPLIANCE ISSUES
A detailed look into compliance issues may be in order. From building codes and standards to the owner’s program and performance expectations, a compliance review can also ultimately save money and time by ensuring full adherence to the requirements needed to use the completed project for its intended purpose. In today’s climate, given changing standards related to climate change, sustainability and adaptability, old ways of doing things are no more. Great care should be taken to perform a thorough review of the new way of building buildings. Perhaps another professional would need to be involved conducting what might consist of a peer review of the documents. The owner is not going to want to pay for changes down the road in order to comply with code officials’ comments at the 11th hour, so best to get this worked out from the outset. When it comes to the performance of the systems specified, you want to make sure that the original material specified or suggested as a substitution is meeting the criteria set out in the specifications for the performance of those various elements.
FORMAL TEAM REVIEW
All contractors and design professionals have standard quality assurance/quality control procedures in place, but a more formal team review is critical. If done early and often enough to make sure the product being produced is meeting the objectives, the timelines and producing good information, the team can securely move on to the next phase of design or construction. With a collaborative effort involving all stakeholders, including material suppliers and subcontractors, costly claims can be avoided and perhaps even efficiencies and savings realized through ideas or solutions that would only have come after lengthy investigation and research in the filed while other disciplines have to wait for an answer to be implemented.
CLOSING THOUGHT
Finally, it is important to be mindful of the contractual obligations the parties owe for these types of critical analysis strategies. We all have lessons learned from prior projects and missteps we made, but we do not want to repeat them, or overlook basic duties in front of us by virtue of the contract documents. Evaluate these performance obligations in the front end and specification sections to make sure staffing is adequate, and the entire team knows their responsibilities to produce a design and constructed project that meets or exceeds expectations. Adopting red team approaches to critical design and construction milestones will keep contractors competitive and fiscally healthy, and their clients will get the benefit of projects built on time, on budget and with minimal claims and disruptions.
About the Author:
William S. Thomas is a principal at Gausnell, O’Keefe & Thomas, LLC in St. Louis, where he focuses his practice on construction claims and loss prevention. He is an AAA Panel Arbitrator, Fellow with the Construction Lawyers Society of America, and member of the International Association of Defense Counsel’s Construction Law Committee, ABA Forum on Construction, AIA, and ASCE. He can be reached at wthomas@gotlawstl.com.
Modern Contractor Solutions, December 2022
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