CONTACTS 

SUBJECTS
Meeting Notes &
Understandings, Procedures

0605 - Called Sarah Bond.
0606 -
0606 -    ..
0607 - Summary/Objective
0608 -
060801 - Advised Sarah that disclosure of Voith's 880912 letter while not
060802 - fatal to the State's position, would be messy to explain away to a
060803 - fact finder.
060804 -
060805 - Sarah said she talked to Sletten's legal adviser this morning and
060806 - indicated Sletten would be deferring its request to examine Tudor's
060807 - files for the time being.
060808 -
060809 -
0609 -
0610 -
0611 - Review of Meeting Notes
0612 -
061201 - Sletten's legal advisor told Sarah that he has not reviewed the meet-
061202 - ing notes and has not listened to the tapes of the meetings.  Sarah
061203 - recommended that he do this before challenging the Engineer on the
061204 - correctness of the procedure.
061205 -
061206 -
0613 -
0614 - Voith Contract 881017
0615 -
061501 - Sletten's legal advisor said they want to meet about negotiating a
061502 - settlement of claims.  Sarah asked if the letter went out answering
061503 - Sletten's 880923 "clarification" letter,  ef 13.  I advised it has
061504 - not been issued to my knowledge, and recommended that for the reasons
061505 - stated earlier, a response of some kind should be made.  Advised that
061506 - a FAX for comment was sent to her last Friday.
061507 -
061508 - Sarah suggested we discuss in the Progress meeting tomorrow setting a
061509 - meeting in Helena for next Tuesday, 881011 on this.
061510 -
061511 - She will call Norm to recommend at least an interim response be
061512 - issued to Sletten's position.  We can treat the matter more fully
061513 - after the meeting tomorrow.
061514 -
061515 -
0616 -
0617 -

SUBJECTS
Time Extensions; Scheduling/Submittals
Understandings, Procedures
Tudor - general views, policies & procedures
Contract Disputes, Executive Training, 930726
Project Planning & Oversight, Feel Good Management - Social Constraints
Welch Management Method
CPM Not Enough Time, Bill Lord resisting
Writing First Understand Discover What We
Legal Brief Story Links Information Time
Conflict with Existing Methods

1913 - Standard Practice
1914 - Application of Contract
1915 - Scheduling Provisions
1916 -
191601 - Sarah said she is informed by a collegue that the Submittals
191602 - provisions in Montana are difficult to uphold in judicial review
191603 - because it is recognized that these generally are not followed on
191604 - contracts.  She feels by implication, other provisions, such as the
191605 - requirement to submit an Updated Schedule each month may not be
191606 - enforceable either.
191607 -
191608 - I pointed out that regardless of standard practice, the State is
191609 - entitled to purchase through its contract the level of effort it feels
191610 - is necessary to accomplish public improvements.  For example,
191611 - Sletten's decison to assemble the Voith equipment by its "Standard
191612 - Procedures" rather than follow the manufacturer's instructions,
191613 - resulted in failed performance.
191614 -
191615 - I suggested that in light of the standard practice rule, the Engineer
191616 - should not be seen to assess damages for past failure to perform
191617 - contract provisions that conflict with standard practice.  The State
191618 - may, however, give notice of the damage that will arise from future
191619 - failure to perform contract provisions like "Submittals" and "Schedule
191620 - update" provisions.  The Engineer may then Direct the Contractor to
191621 - comply in the interest of avoiding such harm, and if the Contractor
191622 - fails to perform, the Engineer can remove this work from the
191623 - Contractor's scope and have it performed by others at the Contractor's
191624 - expense.
191625 -
191626 - Paying for Additional CPM Planning
191627 -
191628 - In the case of the Schedule requirement, I have recommended that the
191629 - State offer to pay the Contractor to provide a viable CPM schedule in
191630 - order to obtain useful schedule information, ref OF 2 line 34,
191631 - submitted at ref SDS 2 line 325,  This would force the Contractor to
191632 - more carefully evaluate its resource needs and work sequencing.  The
191633 - result will be a better managed job, completed in less time and
191634 - expense to the mutual advantage of both parties.
191635 -
191636 -   Clyde has questioned the viability of this procedure, feeling it
191637 -   merely finances the Contractor's claim development activity.
191638 -
191639 -   I explained that in addition to the points made on 880921, ref SDS 2
191640 -   line 352, the State's interests are protected because the scope of
191641 -   the activity would be controlled by the Directive.  Second, the
191642 -   record here shows the Contractor is unlikely to prevail when the
191643 -   true facts are disclosed.  Moreover the Directed Schedule perform-
191644 -   ance would be monitored by the State's own expert in a way that
191645 -   would deny the Scheduling expert from effectively mis-casting the
191646 -   record.
191647 -
191648 -
191649 - Standard Practice & Feel Good Management
191650 -
191651 - "Standard practice" within contracting circles holds that the Schedule
191652 - requirement is a "paperwork" operation performed by special "schedul-
191653 - ing" engineers, rather than a meaningful management tool.  The desire
191654 - to "expedite" the work and avoid unnecessary expense causes scheduling
191655 - decisions to be made ad hoc, by inexperienced managers speculating
191656 - about how things might turn out, without benefit of the analytical
191657 - tools available from CPM.  Social pressure to appear informed and
191658 - pursuasive (i.e. "executive") in combination with a hectic schedule,
191659 - discourages the impulse to say, "Let's look at the chart."
191660 -
191661 -     [see also analysis at Cal Tech seminar in 1992, ref SDS 8 line
191662 -     401, discussion with Morris at ref SDS 6 line 136.]
191663 -
191664 - This is not unique to construction. Lawyers give un-researched and
191665 - un-analysed advice based upon experience they recall which may or may
191666 - not have turned on a particular issue, or the facts were different, or
191667 - adequate expert evidence was not provided, or counsel simply did not
191668 - know how to present the issue because it is complex, or despite the
191669 - brilliant efforts of counsel, the fact finder either could not
191670 - understand or was predisposed against the argument.
191671 -
191672 -
191673 -  ..
191674 - Rhenquist Tests Talking and Listening with Written Analysis
191675 -
191676 - Chief Justice of the U.S. Supreme Court, William Rhenquist recently
191677 - remarked in a forum on decison making before the ABA that when the
191678 - Court meets to discuss cases, decisions are not made to change votes.
191679 - Rather ideas are exchanged and when it appears that his view warrants
191680 - reconsideration, he will say something like:
191681 -
191682 -   "That sounds fine, I would like to see it in writing to consider
191683 -   whether it fits together in the manner you suggest.  If so, I agree
191684 -   with your position."
191685 -
191686 -    [On 911130 Justice Stan Mosk concurred with this idea. ref SDS 7
191687 -    5006]
191688 -
191689 -    [On 980307 Andy Grove, Chairman and CEO of Intel, authored a book
191690 -    "Only the Paranoid Survive" on executive management skills for
191691 -    surviving major change in the computer industry - Grove supports
191692 -    Rhenquist's views about the value of writing. ref SDS 9 3668]
191693 -
191694 -
191695 - The risk of mis-construing verbal exhange basically arises from the
191696 - strength of the process, its flexibility.
191697 -
191698 - With respect to CPM there is now a considerable body of law upholding
191699 - its value to the management process, particularly with respect to
191700 - evaluating time extension and acceleration requests. (AAA and the AGC
191701 - give seminars on this stuff).  As well, there is a large pool of
191702 - experts capable of establishing the connection between a viable
191703 - Schedule and a successful job.  The facts on BPP show the contractor
191704 - has failed to meet its schedule forcasts and has not complied with the
191705 - Schedule requirement.  Further the Engineer has been giving notice of
191706 - the harm which Sletten's failure to perform has and continues to
191707 - cause.
191708 -
191709 - Accordingly, I believe there is a good chance the State can overcome
191710 - any "standard practice" rule with respect to this issue that might
191711 - exist in Montana, provided it is managed in the manner recommended.
191712 -
191713 -
1918 -
1919 -
1920 - Prepared analysis of record development issues to prepare for
1921 - arbitration.
1922 -
1923 - Began statement of Meeting Notes concepts.
1924 -
1925 - Began report to Sarah Bond and other parties for management meeting.
1926 -
1927 -
1928 -

SUBJECTS
Draft Tube Dispute
Defective work by Sletten
showing inexperience

2106 - In telecon with Sarah Bond, she said she is just begining to read the
2107 - Findings on this matter,  ef 6 and 7.
2108 -
2109 -
2110 -
2111 -