THE WELCH COMPANY
440 Davis Court #1602
San Francisco, CA 94111-2496
415 781 5700
S U M M A R Y
DIARY: October 3, 1988 08:05 AM .......;
Worked at BPP on various matters.
2...Feedback Useful Project Resource to Establish "Truth"
3...Truth Disclaimed Without Proof When It is Inconvenient
4...Tape Recordings SDS Record Accurate Thorough
5...SDS Record Accurate Thorough Like Tape Recordings
6...Notice Establishes Accountability for Communication
7...State's Bargaining Position
8...Voith 880927 letter on start
9...Voith 880826 & 880906 letters
10...Voith 880912 letter on DTL
11...Voith recommended work
12...Procedure on Pit Pier
Click here to comment!
0201 - Dep Natrl Recrs & Consrvtn
020101 - Mr. Norman Barnard; Hydro Power Engineer
020102 - Water Resources Division
020103 - Ms. Sarah Ann Bond, Esquire
020104 - Department Counsel
0202 - Sletten Construction Company
020201 - Mr. Paul Robinson; Project Coordinator
Meeting Notes &
Prepare & Distribute
0405 - ..
0406 - Summary/Objective
040701 - Follow up
040703 - Joanne prepared form letter for transmittal of 80922 meeting notes.
040704 - ref SDS 2 0000
040706 - ..
040707 - Sletten's copy was transmitted directly; but the notes for the other
040708 - attendees were issued without a transmittal. This tranmsittal requests
040709 - notification of additions or corrections in order to insure the notes
040710 - accurately reflect the understandings and intent of the parties.
040712 - ..
040713 - Joanne prepared separate transmittal for each of the attendees at
040714 - the 80928 meeting.
Meeting Notes, Understandings, Procedures
Meeting Notes, confirm understandings
Contract Disputes, Welch Management Method
Command & Control of the Record, Contact Management
Contracts Secret Power of Project
Conflicting Understandings Causes Anger,
Meeting Notes, Formal Events Omit Analysis
Traceability to Original Sources
Accurate Complete Notes Can be Prepared
Accurate Records SDS Better Than Tape Recording
Meeting Accurate Records Tape Recording Not Effective for Management
Tape Recordings Inefficient Take a Lot of Time Expensive
Truth Feared Threatens Causes Claim SDS Inaccurate Overlooks SDS Tria
4216 - Discusison
421701 - ..
421702 - Had discussion with Norm Barnard and Sarah Bond on scope and content
421703 - of meeting notes; this resulted from a complaint that Sarah reported
421704 - was made by Sletten today on this matter, and reflects discussion with
421705 - Jeff Ghilardi on 880908, ref SDS 3 4920.
421707 - [On 881007 Tudor VP, Clyde Earnest reviewed standards for meeting
421708 - notes. ref SDS 17 6693.]
421710 - ..
421711 - [On 890324 Clyde found SDS method is overkill. ref SDS 19 6894]
421714 - ..
421715 - Feedback Useful Project Resource to Establish "Truth"
421716 - Truth Disclaimed Without Proof When It is Inconvenient
421718 - Sarah said Sletten complains that the SDS notes for the meeting on
421719 - 880928, ref SDS 9 9330, are inaccurate and misleading, but have not
421720 - yet submitted any corrections. This reflects analysis on 880929 when
421721 - Norm asked if DNRC should tape record meetings. ref SDS 12 0893
421723 - ..
421724 - At that time, reviewed benefit of feedback to establish an accurate
421725 - record, ref SDS 12 3528, in order to manage the project where "truth"
421726 - is disclaimed when it is inconvenient, as set out in the record on
421727 - 880907. ref SDS 2 6927
421729 - [On 881005 DNRC taped meeting; Seltten behind on submitting
421730 - corrections to meetings. ref SDS 16 0001]
421732 - ..
421733 - [On 881007 Tudor management advocates minimizing feedback and
421734 - controversy. ref SDS 17 6693]
421736 - ..
421737 - [On 961017 feedback helpful on Corps of Engineers project.
421738 - ref SDS 21 2068]
421740 - ..
421741 - Sarah has consulted a collegue experienced in presenting construction
421742 - arbitrations, and as a result feels the narrative should avoid "legal"
421743 - terms.
421746 - ..
421747 - Tape Recordings SDS Record Accurate Thorough
421748 - SDS Record Accurate Thorough Like Tape Recordings
421750 - Sarah indicated the SDS record is excellent, appropriate and helpful
421751 - to the State in providing a useful record for daily management and
421752 - resolution of disputes.
421754 - ..
421755 - On 880907 Sletten began tape recordings meetings for the Broadwater
421756 - Dam project. ref SDS 1 3402
421758 - ..
421759 - She listened to one of the tapes all the way through for an hour or
421760 - so, and found the SDS record for the meeting is accurate.
421762 - [On 881102 contractor's counsel asked to "go off-the-record, turn
421763 - tape recorder off, then criticized Engineer's SDS record for being
421764 - inaccurate. ref SDS 18 0629]
421766 - ..
421767 - Sarah's review of the SDS record based on Sletten's tape recordings
421768 - reflects discussion with Wayne on 880907, that a number of people have
421769 - also found that the SDS record is an accurate and useful account of
421770 - the meetings.ref SDS 2 8402 On 880908 Jeff found that the notes are
421771 - accurate, ref SDS 3 2151, but worried that because a contracting party
421772 - was disppointed that a complete and accurate record was produced
421773 - showing failure to perform, then the Engineer was barred from
421774 - producing a useful record.
421776 - ..
421777 - Sarah's report today that the SDS record accurately reflects Sletten's
421778 - tape recording may explain Sletten's decision to stop tape recording
421779 - meetings on 880922, ref SDS 7 8538, and again on 880928. ref SDS 9
421780 - 9330 They want to argue later that the record is incorrect, and a
421781 - tape recording showing that the record is correct would inconvenience
421782 - that argument.
421784 - [See concern contracting parties Chips, Intel and Lockheed, do
421785 - not agree on understandings from meetings where SDS is not used,
421786 - ref SDS 20 0896.]
421788 - ..
421789 - Norm believes the State and Tudor should adopt a clear policy with
421790 - respect to meeting notes content, scope and objectives. He proposed a
421791 - meeting with Clyde when he comes up on Thursday. Norm will contact
421792 - Clyde to set it up.
421794 - ..
421795 - Sarah feels the notes for the meeting of September 14, ref 1, meet the
421796 - standard that is appropriate and necessary.
421798 - ..
421799 - There was discussion that the issue in the meeting on 880922 concerned
421800 - the duty of the Contractor to perform the work, as directed by the
421801 - Engineer, ref SDS 7 9644, and therefore required timely notice of how
421802 - the Engineer viewed the Contractor's conduct and consequences the
421803 - Contractor could expect, if it failed to perform the agreement in this
421804 - regard.
421806 - ..
421807 - Additionally, as the interpreter of the contract and decider of
421808 - disputes, some matters of necessity arise which require legal
421809 - conclusions by the Engineer. The conclusions might be incorrect, but
421810 - they are subject to review (in this case by an arbitrator, who may
421811 - well not be a lawyer, but who must none-the-less reach legal
421812 - conclusions).
421814 - ..
421815 - Norm raised the possibility that Sletten may refuse to attend
421816 - meetings, or will be non-responsive, if the meeting notes continue
421817 - showing the Engineer's understnandings from communications with the
421818 - Sletten in relation to contract requirements.
421820 - ..
421821 - I explained this does not harm the State.
421823 - ..
421824 - The contract requires weekly progress meetings. Sletten requested the
421825 - Engineer to conduct these meetings. Sletten needs information from
421826 - the Engineer. Failure to perform a contract requirement permits the
421827 - State to withhold funds.
421830 - ..
421831 - Notice Establishes Accountability for Communication
421833 - All discussion and activity on the job is part of the record. SDS
421834 - makes it possible to routinely accomplish comprehensive notice
421835 - required by the contract, law, industry practice, and sound management
421836 - practice. Therefore, even if formal progress meetings were
421837 - discontinued, the net effect to Sletten with respect to disclosing
421838 - timely notice of requirements, commitments and an accurate project
421839 - history, is accomplished by SDS. see for example ref DIP 6 0001
421841 - ..
421842 - Finally, the State can encourage Sletten to resume tape recording
421843 - meetings which it stopped doing on 880928, ref SDS 9 line 68. This
421844 - will put pressure on the Contractor to be forthcoming in meetings as
421845 - an alternative to taping the meetings which it does not want to do so
421846 - it can deny its statements in meetings that are unprofessional and
421847 - conflicting with the contract and their prior commitments.
421851 - ..
421852 - State's Bargaining Position
421854 - Sarah observed that the State does not wish to be seen as insisting
421855 - upon the "letter of the contract" when this conflicts with "reason-
421856 - able" management practice. The State wishes to be fair and not take
421857 - advantage of its superior bargaining position (i.e. a govenment
421858 - agency with adequate funds and control of payments).
421860 - ..
421861 - We discussed SDS records on Broadwater present reasons for decision
421862 - based on project history, the contract, and industry practice. SDS
421863 - records show the State is helpful and working constructively to
421864 - assist the contract perform the work quickly and economically.
421866 - ..
421867 - The State should be consistent insisting upon performance of work
421868 - requirements essential to the purpose of the project, as set out in
421869 - the contract, including authority of the Engineer to Direct the
421870 - work. Lack of consistancy invites the Court to determine contract
421871 - provisions were ignored and applied arbitrarily by the State that
421872 - justifies nullification. Moreover, it is difficult to see how the
421873 - State can be criticized as being unfair to the Contractor, when it
421874 - volunteered to pay for extra expense the Contractor incurs in
421875 - complying with the Directive.
421877 - ..
421878 - [The State will be able to establish that Sletten's concern about
421879 - insurance and the like was subtrafuge to hide its real intent to
421880 - disrupt performance of a competitor who got a contract that Sletten
421881 - wanted. Sletten's own meeting notes admit that Sletten "...wants
421882 - nothing to do with Gracon." There are other documents submitted by
421883 - Sletten showing a pattern consistent with the conclusion that its
421884 - intent was to harm Gracon rather than advance a legitimate
421885 - interest, i.e. concern about cofferdam safety.]
421887 - ..
421888 - Another example showing the State is being fair to the Contractor is
421889 - the confirmation of understandings in meetings on 880919,
421890 - ref 27 at line 1605. The Engineer is assisting the Contractor in
421891 - formulating its claim, and pointing out the evidence necessary to
421892 - succeed. All the Contractor need do is submit the evidence. The
421893 - record is repleat with such assistance and demonstrations of good
421894 - faith.
Contract Disputes, Welch Management Method
4704 - Discovery
470501 - ..
470502 - Sarah advised that Sletten is seeking copies of documents on the
470503 - Voith contract under Montana's Freedom of Information procedures.
470505 - ..
470506 - Discussed whether Voith files should be sent to Sarah so she can make
470507 - copies of the documents, or whether Sletten counsel should come to
470508 - the job and simply make copies of what he feels is helpful to him.
470509 - Norm is concerned that this will permit Sletten to rumage through
470510 - Tudor's files and discover materials that could aid them in arbi-
470511 - tration. Sarah said the Contractor is entitled to do this. I asked
470512 - about the lawyer/client privelege. Sarah indicated that communica-
470513 - tions with counsel may be protected.
470515 - ..
470516 - Sarah asked about Sletten's objective in targeting Voith documents.
470518 - ..
470519 - I explained that Sletten has committed to complete certain work by
470520 - 881017. Tudor has explained that this date is predicated on the date
470521 - Voith is to begin its contract work. Sletten has recommended that if
470522 - Voith does not start until later, then Sletten may feel it need not
470523 - incur the expense to accelerate its performance to meet the 881017
470524 - date. Bill Merriman proposed "end of October" alternate start date
470525 - for Voith in the meeting of 880907, ref 24 line 2713.
470527 - ..
470528 - Sletten likely believes that if it can show through discovery of
470529 - Voith documentation that Voith cannot or will not actually begin
470530 - until later, then somehow its liabilities are reduced.
470533 - ..
470534 - Voith 880927 letter on start
470536 - This might have some merit if Voith is delayed for its own conven-
470537 - ience; however the cause cited by Voith is the failure of the "civil
470538 - contractor" to complete on time. Thus, it may be helpful to place
470539 - this in the hands of Sletten to buttress the appropriateness of the
470540 - Engineer's insistance upon timely performance by Sletten.
470544 - ..
470545 - Voith 880826 & 880906 letters
470547 - Advised that I have given Sletten these documents (see ref 26 line
470548 - 1605) upon request, so this demonstrates the Engineer is cooperating
470549 - with the Contractor pursuant to the duty of disclosure cited by
470550 - Sarah. These documents are Voith's reports of findings and
470551 - corrections with respect to Sletten defective work on the DTL.
470555 - ..
470556 - Voith 880912 letter on DTL
470558 - Of greater concern is the the confusion that can be caused by Sletten
470559 - obtaining the 880912 letter from Voith. Though this document does
470560 - not ultimately harm the State's position (see ref 25), it would
470561 - likely be seen upon cursory review by Sletten as supportive of its
470562 - claim regarding DTL and tolerance issues. It would also require
470563 - special effort to explain to an independant fact finder.
470567 - ..
4708 - State Discovery
470901 - Sarah advised that the contract permits the State some discovery.
470903 - ..
470904 - I think we should probably cast our discovery tangentially by
470905 - requiring the contractor to submit the evidence it has that supports
470906 - recovery for claims. We can take the position that unless evidence
470907 - was submitted to the Engineer it should not be admissible in formal
470908 - dispute resolution, since failing to do so circumvents the intent for
470909 - the Engineer to decide disputes.
470911 - ..
470912 - Even if not upheld, as is likely, it would show the Engineer was
470913 - trying to get all the information needed to make a good faith
470914 - decision. This is an important point. Whether we want to accomplish
470915 - it in this manner or not, we want to show the Engineer's decision was
470916 - correct for the information supplied by the Contractor. If the
470917 - arbitrator feels the Engineer was "arbitrary" any award for the
470918 - Contractor will likely be increased "arbitrarily."
Standby Power System
490501 - ..
490502 - I reviewed all of the Inspector's DWR's and found that quite a number
490503 - of instances occurred when the work was flooded due to failure of a
490504 - reliable standby power supply.
490506 - ..
490507 - This shows the delay in meeting contract completion dates was likely
490508 - due in large measure due to this cause. If it is upheld as a
490509 - contractor responsibility, then it would
Claims & Contractor
Review with Contractor
Pending Change Order Requests
500701 - ..
500702 - Called Paul and set meeting for Thursday afternoon 88106.
Draft Tube Dispute
Defective work by Sletten
510601 - ..
510602 - Richard Wall, Welding Inspector (406 226 6758)
510604 - ..
510605 - Received call 10:32
510607 - ..
510608 - Richard called from Conneticut. He found a lot of defects in
510609 - Sletten's welding. Richard characterized Art Harding as a marginal
510610 - welder. I understood Richard to say that that Art is not qualified to
510611 - perform vertical welding.
510613 - ..
510614 - I asked Richard to prepare a report on his findings. He will come to
510615 - the job next Monday to discuss in detail the report that is needed.
510617 - ..
510618 - Advised Norm of Richard's planned visit. Informed him there will
510619 - likely be some expense, but recommded that it is justified.
Draft Tube Dispute
Defective work by Sletten
5406 - Called 11:10
540701 - ..
540702 - Failure to Follow Voith Instructions
540703 - Sletten had inexperienced Workmen
540705 - Larry did most of the survey work for Hanson in support of Sletten's
540706 - installation of the Pit Pier and the DTL (see Tudor Project Status
540707 - Report for 880808.
540709 - ..
540710 - Larry said he believes Sletten's work procedures on the Pit Pier
540711 - were poor (he said "primative"). Larry cited as a general example
540712 - that Sletten was using only 1 jack to move the piece into align-
540713 - ment. He recalls that Voith's Field representative made recom-
540714 - mendations to Sletten which Larry felt were helpful, but Sletten in
540715 - some cases wouldn't follow them.
540717 - ..
540718 - Survey of As-built condition
540720 - Larry advised that he took some survey shots of the DTL after
540721 - Voith completed the repairs but did not prepare a formal report.
540722 - Sletten asked that he advise them of the values he found.
540724 - Larry recalls that his values were very close to those reported by
540725 - Voith in its final report.
540729 - ..
5410 - Meeting with Ken Carlson
5411 - Voith Field Representative
541201 - Ken said that Larry advised him of the survey readings Hanson got
541202 - when they checked Voith's as-built condition on the DTL in September,
541203 - and that they were very close to Voith's.
541205 - ..
541206 - Voith recommended work
541207 - Procedure on Pit Pier
541209 - Ken recalled that he recommended to Sletten's foreman, Dave Marsh,
541210 - that they work on one alighment parameter at a time until it is within
541211 - tolerance; then do the next one. He pointed out that Dave was getting
541212 - confused by the large number of different measurements they had to
541213 - track using Sletten's procedure. After experiencing failure in
541214 - attaining alighment, Sletten finally adopted Voith's recommendations
541215 - and succeeded with the Pit Pier alighment.
541217 - ..
541218 - Sletten had a similar problem on the DTL, see Voith report for
541219 - 880812.
5907 - Need to respond to Sletten's 880908 Schedule.
590801 - ..
590802 - The reports are fairly good, except there is no link between the
590803 - narrative and the scheduled activities.
590805 - ..
590806 - Defective work
590808 - Norm Barnard related work deficiencies that he and Larry discovered
590809 - in the rebar that led to delaying a concrete pour scheduled for
590810 - last Saturday. He also advised that Kieth told him that Sletten
590811 - had difficulty getting rebar workmen on Saturday. This caused the
590812 - pour to be delayed until today.
590814 - ..
590815 - I asked if this was reported in the PSR. Norm indicated it was not
590816 - reported because the problem was corrected by the Contractor.
590817 - ..
590818 - I explained that since the contractor has given notice of
590819 - intent to claim extra expense for acceleration, and since such claim
590820 - requires showing the cause of delayed performance, then the State
590821 - should record matters that delay the work, in order to facilitate
590822 - dispute resolution.
590825 - ..
590826 - Labor for corrective Work
590828 - The PSR contains a number of entries where the contractor had to
590829 - correct defective concrete work (voids and rock pockets damaged
590830 - forms due to boulder damage).
590832 - ..
590833 - Recommended that these reports show the number of men who perform
590834 - the corrections in order to evaluate the Contractor's acceleration
590835 - claim.
590838 - ..
590839 - Concrete Pours
590841 - Larry has good records of concrete pours. He is using a red pencil
590842 - to record the dates of actual pours and they do not copy well.
590843 - Recommended he use a different writing instrument so the data can
590844 - be readily copied.
590846 - ..
590847 - Engineer should have ledgible concrete pour data created and
590848 - maintained in the regular files.
Distribution. . . . See "CONTACTS"