CONTACTS 
0201 - Millier, Morton, Cailat & Nevis    408 292 1765 fax 4484
020101 - Mr. Frank Hughes, Esq.
020102 - Mr. William K. Hurley, Esq.
0202 - Reiner and Associates              415 479 4007 fax or 800...
020201 - Mr. William B. Reiner, A.I.A.
0203 - Amer. Arbtrn Assn.                 415 981 3901 fax 781 8426
020301 - Ms. Lynne S. Howe; Partnering Coordinator =415 984 5446
020302 - Partnering Program  415 984 5457 fax 362 6226
020303 - Mr. Bruce Johnsen; Partnering Facilitator =408 373 5969 fax 5969
020304 - Partnering Program  415 984 5457 fax 362 6226

SUBJECTS
ASPS, 950128
Build Job with Conversation
Conflict between Competition and

0605 -    ..
0606 - Summary/Objective
0607 -
060701 - Follow up work at ref SDS 6 line 194.
060702 -
060703 -
060704 - This presentation argued for keeping better records, but there are
060705 - two incentives against keeping good records.
060706 -
060707 -    1.  TQM and Partnering urge that building a team relationship can
060708 -        avoid the risk of carrying out the contract.  But when you
060709 -        build a record of errors, you do not build friendships.
060710 -
060711 -    2.  Records are discoverable.  Many lawyers tell their contractor
060712 -        clients don't put anything in writing.  This results in trying
060713 -        to build the job with conversation.
060714 -
060715 -
060716 - Competitive bidding has a requirement to hold parties to the contract
060717 - otherwise the race goes to the person most able to talk their way out
060718 - of a jam.
060719 -
060720 - The conflict in the system is that competitive bidding sets an
060721 - objective to hold parties to perform the contract, yet contracts are
060722 - so complex that it is difficult to do this.  Therefore, neither party
060723 - can really perform the contract, and an adjudicator is not adequately
060724 - skilled to apply the contract under the complex fact pattern that
060725 - emerges during a hearing.  If a contractor is not held to perform,
060726 - then the other bidders are harmed.
060727 -
060728 - Frank recommended project managers use a 3 part form to expedite
060729 - writing down matters that arise under the notice provisions of the
060730 - contract.
060731 -
060732 - Bill Hurley suggested that project managers examine the contract at
060733 - the start of a job to identify specified time periods, and compile a
060734 - list that is visible from their workstation, so they are reminded to
060735 - comply with these provisions.
060736 -
060737 -    This goes to the point that most contract disputes arise because
060738 -    parties doe not follow the contract.
060739 -
060740 -    It does not deal with the correlary that most solutions to
060741 -    disputes are in the project records.  The latter are not consulted
060742 -    because it does not seem timely to do so.
060743 -
060744 -
060745 -
0608 -

SUBJECTS
Pier 11 Fender Reconstruction
Welch v. State
Evidence & Burden of Proof

0906 - Summary/Objective
0907 -
090701 - Frank and Bill were familiar with the Welch case.  They apparently
090702 - rely on it for the superior knowledge duty of public entities to
090703 - disclose information to bidders.
090704 -
090705 - I asked about any subsequent cases that cited Welch for the
090706 - proposition that contractor's are required to prove reliance on
090707 - defective bid documents.  Frank said he was not aware of any cases
090708 - that have used Welch in this way.
090709 -
090710 - Frank said he thought Welch was incorrectly decided with respect to
090711 - the affirmative misrepresentation.
090712 -
090713 -
090714 -
0908 -

SUBJECTS
TQM, Partnering
Facilitator, Needs Communication Metrics to
Conflict between Competition and
Partnering Needs Communication Metrics to

1607 -
160701 -  ..
160702 - Partnering Methods
160703 -
160704 - The second presentation was by a group of 3 people representing the
160705 - AAA, on "partnering" to improve performance on construction contracts,
160706 - similar to PMI Asilomar event at ref SDS 4 line 71.
160707 -
160708 -    [See follow up monthly meeting discussion at ref SDS 8 line 69.]
160709 -
160710 -    [Also COE contract dispute in 1996, ref SDS 11 line 152.]
160711 -
160712 -    [Partnering used at Kwan Henmi for UCB project, ref SDS 12 line
160713 -    170.]
160714 -
160715 - Two of the presentors work in the SF office of AAA, and so seem to be
160716 - full time employees in a "Partnering Program" group.  The third pre-
160717 - sentor, Bill Reiner, seems to have his own business, although he is
160718 - an arbitrator and told of a recent case that took 6 months in
160719 - Philidelphia where the parties were seeking $300M on a hotel project,
160720 - and were awarded $30M.
160721 -
160722 - This three person presentation group used the "facilitator" concept,
160723 - where one person talks and another writes down an outline of what was
160724 - being said.  The only difficulty I have with this methodology is that
160725 - what was written was not later made available to attendees in written
160726 - form.
160727 -
160728 - The claim was made that "partnering" avoids disputes because the
160729 - parties, called stakeholders, establish lines of communication and
160730 - methods that permit disputes to be resolved through partnering.
160731 -
160732 - What seems to take place is an initial partnering meeting at the
160733 - beginning of a project.  This is conducted by the AAA people and can
160734 - cost from $4,000 to $10,000, depending upon whether there is a second
160735 - or third partnering meeting conducted by the outside group. After the
160736 - first or second meeting conducted by an outside facilitator group, a
160737 - member of the contract team takes over to conduct subsequent meet-
160738 - ings.  The outside (e.g. AAA) facilitator group, can be hired ad hoc
160739 - for future meetings, if the team decides this is necessary.
160740 -
160741 - The initial meeting has the team perform a simple project, so they
160742 - get to know each other.  Forms are supplied for preparing a "mission"
160743 - statement, developing procedures for deciding disputes, and measuring
160744 - performance relative to the mission statement.
160745 -
160746 - We did not get copies of the forms shown during the presentation, nor
160747 - examples of what they would contain, except for the Mission
160748 - Statement.  One example of a "mission statement" was
160749 -
160750 -              Too build the best project so everyone makes a
160751 -              profit and there are no lost time accidents.
160752 -
160753 -     ...this seems like no more than to say we will perform the
160754 -     contract.
160755 -
160756 - My general impression was that the examples for the mission statement
160757 - were too broad to demonstrate how partnering can assist in carrying
160758 - out the parties contract duties and responsibilities.
160759 -
160760 - These are needed to better understand what actual steps are involved
160761 - in partnering.
160762 -
160763 -
160764 -  ..
160765 - Competition and Cooperation
160766 -
160767 - I asked about how the partnering idea of better communications and
160768 - good relations, correlates with the ideas presented this morning about
160769 - giving timely notice.  How do "partners" avoid the pitfalls of "feel
160770 - good" practices that reduce performance of internal management,
160771 - discussed at ref SDS 2 0880.
160772 -
160773 -     Bill made the important point that "partnering" is the beginning
160774 -     of improving contract performance.  It is something the parties
160775 -     have to work hard at everyday.
160776 -
160777 -     I mentioned the idea of "communication metrics" during Bruce
160778 -     Johnson's portion of the presentation, but this was not taken up
160779 -     as a daily endeavor to insure understanding.
160780 -
160781 -        [See follow up with COE project in 1996, ref SDS 11 line 151.]
160782 -
160783 - He said that CALTRANS now specifies "partnering" as a bid item on its
160784 - projects.
160785 -
160786 -
160787 -    [Followed up at ref SDS 7 line 43, and at ref SDS 9 line 173 on
160788 -    need for notice provisions.]
160789 -
160790 -    "See "Feel Good" management at ref SDS 3 line 172.
160791 -
160792 -   [See where same concern limits use of technology to improve contract
160793 -   communication practices, ref SDS 10 line 85.]
160794 -
160795 -
160796 -
160797 -
1608 -