< Previous| OPINION | 158 JUNE 2024 MASTERING CONSTRUCTION DISPUTE RESOLUTION Joshua-Coleman Pecha, Senior Associate at HFW, discusses the signi cant impact of disputes in construction projects, emphasising how it is important to ‘litigotiate’ swiftly and effectively, and the processes to follow There are likely as many disputes over construction projects as there are construction projects. The value of disputes can be greater than the value of the project. In many instances, it will be greater than the contractor’s profi t margin. Properly handling disputes is vital to survival in the construction industry. However, parties involved in construction projects do not always mitigate risks eff ectively. Even the highest market-cap international corporations take risks at the contract negotiation stage to ‘win-the- bid’. During the construction phase, parties regularly fail to mitigate risk. Notable omissions include not adhering to notifi cation periods, failing to mitigate, failing to adhere to variation procedures, withholding payments, improperly In our experience, parties will often ‘litigotiate’ their disputes; that is, they will threaten or initiate formal dispute resolution to ‘fl ush out’ problems and force settlement. This can seem like an aggressive approach, but being reticent to engage only prolongs the issues and increases costs. It’s important to litigotiate swiftly and eff ectively. To achieve this, here are the key points to consider: DATA: Data is your evidence. No evidence means you cannot build a case. If the other side has more evidence, they will immediately be in a superior position. Many large projects use Aconex or something similar to store parties’ correspondence. However, the devil is in the detail. Parties should keep at least daily, weekly, and monthly reports, meeting encashing bonds, and incorrect termination. Parties should invest in good legal advice, both during contract negotiation and whilst the project is ongoing, rather than ‘kicking the can down the road’. It might seem expensive, but it will pay dividends in the long run. Most disputes come to a head in the latter stages of a project or when the parties seek to agree on a fi nal account. This is because parties can no longer ignore the skeletons in the closet. So, what can companies do to ensure that disputes do not irreparably damage them? Sadly, there is no panacea solution. If faced with a particularly combative opponent, sometimes nothing can prevent going to trial. Luckily, most parties in construction are commercially minded organisations, that understand disputes are not worth the time or cost. | OPINION || OPINION | JUNE 2024 159 minutes, correspondence, project schedules, program updates, drawings, employee records, progress records, and accounts. It is remarkable how often these are incomplete or non-existent. IDENTIFY ALL DATA LOCATIONS: Data will exist in employee laptops, mobile phones, portable electric devices, and email accounts. Make sure these are kept safe and made available to your legal team. USE AN EDISCOVERY COMPANY: The temptation, because it is cheap and effi cient (in the short-term), is for companies to select the data they give to their lawyers. We do not recommend this. In fact, it is cheaper and more eff ective (in the long run) to appoint a specialist data manager (an eDiscovery company) to harvest the data and upload it onto bespoke software. This will assist the legal team to manage, review, and disclose the data effi ciently and eff ectively. EMPLOYEE RETENTION: Witness evidence is often very useful and sometimes vital. Unfortunately, long projects often suff er from high personnel turnover, and sometimes, the project team is disbanded. If disputes appear likely, we recommend doing all you can to retain key staff . CLAIMS CONSULTANTS: Claims consultants Good legal counsel will help prospective litigants litigotiate their way through the dispute mine eld perform a valuable service as they are often the client’s fi rst external appointment in a dispute. They review the data, build a case narrative, and can provide input on delay and quantum. However, we recommend they are engaged alongside other experts and legal counsel. EXPERTS AND LEGAL COUNSEL: We recommend engaging separate delay and quantum experts and legal counsel at the same time as the claims consultant. This may seem like overkill, but it means that the right advisor(s) performs the right tasks via a one- time, well-organised process. The caveat is that one must eff ectively manage the advisor team. Employers and/or contractors (and their legal teams) must set out clear scopes of work, timetables, and budgets to ensure that ‘mission and cost creep’ does not occur. USE MEDIATION EFFECTIVELY: Too often, parties engage in mediation because their contract says they must or because they want to be seen to be reasonable. This can cause ineff ective mediation, where parties use it to argue their case, rather than settle the issues. Eff ective use of mediation starts with selecting the right mediator. The parties must then properly engage with the mediator and each other before the mediation. This ensures that positions are set out and there is a plan to negotiate their settlement. Finally, everyone must leave the mediation with a clear and shared understanding of what settlement ‘looks like’. Good legal counsel will help prospective litigants litigotiate their way through the dispute minefi eld. This requires proactive management of the above issues with a laser focus on delivering effi cient and cost-controlled legal, delay, and quantum advice. Joshua-Coleman Pecha, Senior Associate, HFW| INTERVIEW | 160 JUNE 2024 FUTURE-READY CONSTRUCTION: BEHIND THE SCENES OF MANAGING MEGA PROJECTS Mark Larkin, Assurance Partner at EY MENA, on the strategies, innovations, and insights for managing and resolving challenges in large-scale construction and engineering projects As large-scale construction projects in the Middle East gain traction, companies are leveraging innovative project controls, risk mitigation strategies, and emerging technologies to tackle unique challenges. Mark Larkin, Assurance Partner at EY MENA, shares exclusive insights from their extensive regional experience and discusses their proactive approaches to dispute resolution and project success in this rapidly growing market. How do your project controls and monitoring processes identify early warning issues in large-scale construction projects? Can you share examples where these processes have successfully prevented potential problems? EY’s Capital Projects solution helps fi ll the gap in terms of know-how, experienced resources, and the tools needed to prepare, can arise at an early stage of a project. These include a lack of due diligence about stakeholders, fi nancing issues, a lack of clarity and/or unreasonable risk allocation in the contract documents, an under-developed design and/or fundamental change in the project requirements. EY off ers a range of services which can prevent issues of this nature arising. We can conduct due diligence on the key stakeholders and the supply chain, conduct contract reviews, and check that the programme and contract price are realistic and that risk is allocated to those parties best positioned to manage it. Even if EY is not involved from the outset of the project, our project monitoring tools provide real-time dashboards to identify problems before they escalate. For example, delays to or problems with changes to the design will often manifest at an early stage in delayed procure, and deliver projects and major programmes. In addition to providing specialist advisory services, after ensuring the team fully understands the key deliverables, we can help design and implement proactive project controls to identify and mitigate potential issues, including improved risk management functions to oversee the delivery of major programmes. This can include implementing a bespoke plan to collect and analyse the project data and monitor the same against planned progress/spending. This alerts and enables us to address problems in real-time. Based on your experience in claims and dispute management, what common early- stage issues arise in large-scale projects, and how do your strategies resolve them before they escalate? There are several reasons why diffi culties | INTERVIEW || INTERVIEW | JUNE 2024 161 submission/approval of shop drawings, problems with material approvals, and more. Our project monitoring team will be able to fl ag this before the various parties involved start to dig into positions about who is primarily responsible, determine the root cause of the problem and, based on this, off er strategic guidance, which increases the likelihood of the parties reaching a solution collaboratively. Can you elaborate on the specifi c risk mitigation strategies you employ to minimise the risks in large-scale construction and engineering projects? How do these strategies diff er based on the unique challenges each project faces? The majority of disputes on large-scale construction projects relate either to time, cost or both. EY’s team provides a range of project audit services, including capex spending effi ciency and programme advisory reporting, to identify at any given stage in the project how well the project is progressing against targets and, to the extent that it is not progressing as expected, the reasons for this. However, each project is unique, as are the claims and disputes arising out of them. For example, where it is evident that the root cause of delay to a project was one major design issue, we would focus on the technical reasons for the design failure rather than programming issues in isolation, as this would likely be the central issue in any dispute. How does your team de-escalate confl icts and manage client expectations when confl icts arise? One of the best ways to de-escalate a confl ict, while also managing client expectations, is to utilise the project data to ground the parties’ positions in evidence and fact. It is not uncommon for parties to be in dispute over, for example, a variation account because both parties have reported a position that may not be fully understood up to the C-Suite level. One of the most successful ways of resolving such disputes is for a third-party like EY to go in and ‘stress test’ the variation account to give the C-Suite a more readily supportable assessment of their position to rely on in negotiations. How has your team’s experience in the region shaped your approach to project management and dispute resolution? What key lessons have you learned, and how have they been integrated into your current practices? The EY Capital Projects team has extensive regional experience and our consultants are cognisant of issues such as how the governing law of a construction contract might impact on the interpretation of certain key provisions. Although the majority of construction contracts in the MENA region will be governed by the Civil Code of the country in which the project takes place, this is not always the case. Some contracts elect a foreign governing law; in some instances, provisions of Sharia law may still apply, and there are common law jurisdictions located in the MENA geographical region with their own legislation. It would make a signifi cant diff erence to, for example, the enforceability of liquidated damages provisions, which of these potential governing laws applies. What emerging trends or technologies will impact large-scale construction and engineering projects, and how is EY preparing to integrate these advancements? A key part of achieving the results that our clients want is the ‘human’ aspect of EY’s service. However, by no means should this suggest we underestimate the benefi ts of technology and how digital project controls and AI can be used to deliver these results. The generation of benchmark matrices for cost and schedule forecasting, and using statistical analytics of historic and available data is the emerging trend in the market driving capital projects. AI is revolutionising project controls by providing advanced data analysis capabilities, which are, in turn, generating valuable insights and predictions, empowering proactive decision-making and optimising project outcomes. Mark Larkin, Assurance Partner at EY MENA| BRAND VIEW | 162 JUNE 2024 FALL PROTECTION FOR MODERN ARCHITECTURE Stuart Pierpoint, Speci cation Sales Manager for Middle East at MSA Safety, examines how architects can rise to the challenge of choosing the right fall protection system Design aesthetics, multiple test standards, and changing construction materials can all pose challenges to architects when it comes to choosing the right fall protection system. Stuart Pierpoint, Specifi cation Sales Manager, Middle East, MSA Safety, looks at the heritage of fall protection systems and what architects may benefi t from considering when selecting fall protection. What are some of the challenges architects face today when specifying fall protection? Buildings are constantly evolving in complexity and, as a result, a roof has a lot more happening on it today. Architects need to consider the multiple products present on a modern roof when designing a roof’s capacity, such as solar panels, CCTV, air to help them maintain their architectural integrity without compromising user safety. When and why should fall protection be a key consideration in the design phase? Working at height is still the biggest cause of workplace deaths in the construction industry. Fundamentally, fall protection systems are designed as one layer of protection to prevent loss of life and keep workers safe. This is a massive responsibility for architects and designers when selecting fall protection systems. This decision can benefi t from consideration at the start of the design process, alongside the access and maintenance strategy. Additionally, prioritising user involvement in future maintenance will ensure the long-term safety of both the workers and the building. conditioning units, lightning protection, green roofi ng systems, roof lights, general roof maintenance, and more. With this comes the added responsibility of planning safe access for installation, as well as planning future access to service these products and maintaining other high-risk areas for the lifespan of a building. The challenge for architects is to incorporate a fall protection system that enables safe access while addressing their other priorities, such as the freedom to design aesthetically pleasing buildings. Architects need systems that complement their designs. Of course, there is also the challenge of positioning a fall protection system. This is where MSA Safety’s free design service can help. If architects provide architectural roof drawings, we can recommend system designs | BRAND VIEW | JUNE 2024 163 Stuart Pierpoint, Speci cation Sales Manager, Middle East, MSA Safety Fall protection systems continue to evolve with developments in roo ng technology Fall protection systems are designed as one layer of protection to prevent loss of life and keep workers safe What are some of the most important things to consider when choosing a fall protection system? As previously discussed, building complexities are continuing to evolve and fall protection systems need to keep pace. Architects often like to be ahead of the curve, so when it comes to worker safety, they want to know they’re choosing an innovative and proven solution. Some key considerations for fall protection systems for architects include ease of installation, compliance, worker safety, building/roof protection, and meeting standards. This may seem like a lot to consider, but a well-designed fall protection system will do what the architect deems important for the application while still helping to protect the integrity of the roof. It is important to note that if a system isn’t practical or easy to use, workers may not use it properly and could put themselves and others at risk. Architects should also consider the walkways and other exterior paths that workers use to access a fall protection system, remembering that it’s not always dry and sunny and that workers may need access when it’s raining, windy or in sub-zero temperatures— all conditions that increase the risk of workers slipping. How have fall protection systems changed in recent years? Fall protection systems continue to evolve with developments in roofi ng technology. At MSA, innovation and the premium nature of our products over time have resulted in simpler and easier-to-install systems—a key benefi t for installers and contractors alike. Some roof profi les have also become thinner and potentially more fragile using materials like copper and zinc, driving developments in load absorption technology. For example, at MSA Safety, we’ve utilised our Constant Force® technology so that our systems can typically be installed on these roof profi les and still control the load in the event of a fall. We’ve also increased our emphasis on comfort and enhancing the user experience to help encourage the proper use of fall protection systems or personal protective equipment (PPE). Can you tell us about MSA Safety’s heritage in fall protection systems? MSA Safety has been protecting lives for over a century and has experience in cable-based fall protection systems since 1974. This means we thoroughly understand safety challenges and the needs of working at height. In 2001, we introduced an innovative and ground-breaking fall protection system called the Constant Force® Post. This system has an energy-absorbing coil inside that limits the load to the roof, helping to protect both the worker and the roof from the sudden energy of a fall. It has been tested on more than 500 diff erent representative roof constructions and is used around the world on thousands of roofs. What makes MSA Safety’s systems unique? There is no one-size-fi ts-all when it comes to our fall protection systems. With the use of high-quality materials, proven performance of energy absorption systems and specialised design service, we are proud to off er our customers a holistic safety system that considers the architect, the user and the building. Finally, if you had one message for architects about the specifi cation of fall protection systems, what would it be? MSA provides reliable guidance in selecting practical solutions, even for challenging applications. With MSA’s Latchways Constant Force® Post, you can achieve both innovation and safety—you dont have to choose. Our team of experts is available to help you understand and select the appropriate fall protection solutions from our range. We recognise that considering fall protection can be challenging and are here to assist. | INTERVIEW | 164 JUNE 2024 ARCHITECTS OF ADVENTURE Troy Gillham, CEO of Warrior Group, discusses how the company’s strategic ventures in Saudi Arabia blend adventure, culture, and sustainability, signi cantly contributing to Vision 2030 Warrior Group, a leader in adventure and recreational projects, has been making signifi cant strides in the Middle East, particularly in Saudi Arabia. Since it fi rst stepped foot into the kingdom in 2019, the company has quickly become a key player in Saudi Arabia’s ambitious Vision 2030 initiative, driven by a commitment to excellence and innovation. Warrior Group’s journey in Saudi Arabia began with a vision to harness the region’s rich cultural heritage and natural beauty for transformative projects. The AlUla Adventure Hub exemplifi es this approach, integrating adventure tourism with the preservation of AlUla’s unique archaeological and historical sites. This project not only aligns with Vision 2030’s goals of sustainable tourism and cultural conservation but also showcases Warrior Group’s dedication to eco-friendly and responsible development. milestones such as strategic partnerships and pioneering projects. “Our portfolio showcases our penchant for pushing boundaries,” he notes, referencing iconic structures like the AlUla Giant Swing and the innovative Desert Warrior Challenge. These projects have not only solidifi ed their reputation for technical expertise but have also become landmarks in the region’s leisure and adventure landscape. Warrior Group’s current and upcoming projects in Saudi Arabia are closely aligned with the country’s Vision 2030. The AlUla Adventure Hub, for instance, promotes sustainable tourism by off ering eco-friendly The decision to open its fi rst offi ce in Saudi Arabia was strategic, refl ecting the burgeoning demand for their expertise. As Troy Gillham, CEO of Warrior Group, explains, “We observed a growing need for localised support to manage our expanding portfolio in the kingdom eff ectively.” This move has paid off signifi cantly, with approximately 70% of their business operations now centred in Saudi Arabia. He states that their presence in the country underscores a deep commitment to contributing to its socio-economic progress. Refl ecting on Warrior Group’s history in the Middle East, Gillham highlights key “We prioritise experiences that foster community engagement, providing individuals access to outdoor recreation and exploration”| INTERVIEW | JUNE 2024 165 Troy Gillham, CEO of Warrior Group The company’s current and upcoming projects in Saudi Arabia are closely aligned with the country’s Vision 2030 Warrior Group is highlighting AlUla’s cultural and archaeological heritage through the lens of adventure activities that highlight AlUla’s cultural and archaeological heritage through the lens of adventure. Similarly, their involvement in the Red Sea Project focuses on developing experiences that complement luxury tourism destinations using eco-friendly practices, supporting Vision 2030’s goals for sustainable development. The integration of local culture into their projects is paramount for Warrior Group. “We collaborate closely with local communities, architects, and historians to ensure our adventure off erings respect and celebrate the region’s heritage,” says Gillham, pointing out that this approach not only enhances the visitor experience but also fosters a deeper connection to the land and its people. Their projects often include job creation and training for residents, thereby supporting economic growth and strengthening the social fabric of the communities they serve. “Across the region, our ventures echo the same ethos of progress and community enhancement. Whether it’s developing eco- friendly adventures or revitalising urban spaces, each project supports our clients and government’s vision and commitment to creating vibrant communities,” he adds. Operating in Saudi Arabia presents unique challenges and opportunities. The vast and varied landscapes of the kingdom, from rugged mountains to pristine coastlines, off er abundant opportunities for adventure tourism. However, Gillham acknowledges the logistical challenges posed by remote locations and the need for meticulous planning to preserve heritage sites. “Our work frequently involves heritage sites that hold signifi cant cultural and historical value,” he explains. “We prioritise eco-conscious construction practices to minimise our environmental footprint and respect the natural surroundings.” Gillham elaborates further, “By navigating these complexities with expertise and dedication, we not only overcome logistical hurdles but also contribute to the sustainable development and preservation of these remarkable locations.” Continuing, he says that the Warrior Group’s approach revolves around community development and destination growth. “We prioritise experiences that foster community engagement, providing individuals access to outdoor recreation and exploration,” he explains. “This strategy not only enriches individual well-being, but also supports small businesses and fuels local talent development.” Furthermore, Gillham highlights the broader impact of adventure developments on the city’s identity. By attracting visitors and residents, these projects cultivate vibrant public spaces for leisure and recreation. “By embracing outdoor adventure and sustainable practices,” Gillham asserts, “destinations and cities can realise their full potential, crafting unforgettable experiences while fostering economic prosperity and community welfare.” Looking ahead, Warrior Group’s expansion plans in Saudi Arabia and the broader Middle East involve ongoing collaboration with local partners and developing innovative projects that address regional needs. They are actively engaged in projects across the dynamic landscapes of Madina, Tabuk, and the Red Sea Region, with discussions underway for future developments in the central and southwestern regions of Saudi Arabia. Beyond their projects, Warrior Group is dedicated to fostering community engagement and supporting local talent. “We believe in the power of collaboration and invite like-minded partners to join us in shaping a brighter future for the region,” concludes Gillham. | PARTNER CONTENT | 166 JUNE 2024 CELEBRATING A CENTURY OF DEWALT: THE 100-YEAR ANNIVERSARY EVENT DEWALT’s grand event at the Dubai Autodrome highlighted cutting-edge tools and future advancements designed to empower professionals worldwide From humble beginnings to becoming a global powerhouse, DEWALT has epitomised innovation and resilience over the past century. In a grand celebration at the Dubai Autodrome, DEWALT marked its 100-year anniversary with an event that not only honoured its storied past but also looked forward to a future of continued innovation and excellence. The two-day event brought together 125 partners and over 40 end users, off ering a dynamic display of DEWALT’s historical journey and its profound impact on the industry. This milestone served as a testament to DEWALT’s dedication to empowering professionals worldwide with tools that are built to last and perform under the toughest conditions. DAY 1: A TRIBUTE TO PARTNERS AND INNOVATION The fi rst day was dedicated to DEWALT’s partners, celebrating their pivotal role in the EXPERTISE IN ACTION Over two days, DEWALT’s latest innovations were prominently featured, with over 70 tool displays showcasing everything from the powerful DEWALT FLEXVOLT 54V Battery technology system and the DEWALT POWERSTACK™ Compact Battery systems to the advanced DEWALT PERFORM & PROTECT™ line of tools and accessories. Partners and end-users had the opportunity to see these tools in action and gain a deeper understanding of the technology that sets DEWALT apart in a competitive marketplace, over the course of the event. The DEWALT FLEXVOLT 54V Battery technology system, a game-changer in the industry, was one of the highlights, off ering unparalleled power and fl exibility. Depending on the tool, it’s designed to transition between 18V and 54V, ensuring that users have the power they need for any job. company’s success. Attendees were treated to an exclusive preview of DEWALT’s plans for 2024, underscoring its commitment to future advancements in the industry. The event also featured live product demonstrations and tool displays, along with exciting challenges and branded simulator experiences. Highlights included the 3 Thru 3 and Pit Stop Challenge, as well as the McLaren-branded simulator. DAY 2: AN UNFORGETTABLE EXPERIENCE FOR THE PROS The second day was all about giving back to DEWALT’s end users. More than 32 professionals enjoyed a once-in-a-lifetime driving experience in DEWALT-branded McLaren cars and received co-branded McLaren gifts. These activities underscored DEWALT’s commitment to providing not only top-of-the-line tools but also unique experiences to its dedicated users.| PARTNER CONTENT | JUNE 2024 167 Julien de Boury, Marketing Director, ME & East and West Africa (EWA) at Stanley Black & Decker, noted, “The battery technology system revolutionises how professionals approach their work, providing them with the versatility and power required to tackle the most demanding tasks. The DEWALT POWERSTACK™ Compact Battery, another star of the show, was also available for attendees to experience fi rst- hand. Highly regarded for its combination of power and portability, it allows for broad application capabilities and fast performance with cordless tools. “With the DEWALT POWERSTACK™ Compact Battery, we are off ering our users a compact solution that doesn’t compromise on power or effi ciency,” added de Boury. He also elaborated on DEWALT’s Perform & Protect™ line of tools and accessories, designed in line with innovative technology- driven safety features that professionals use on the job site every day. “For more than 12 years, DEWALT has been committed to developing tough, innovative solutions that push the boundaries of performance while protecting the health of individuals on the job site,” said de Boury. Each product in this line integrates best- in-class safety features, such as industry- leading dust management, increasing user control, and vibration reduction technology, ensuring compliance with strict construction site regulations. As part of the display, attendees could also observe the DEWALT ELITE SERIES™ products’ accessories. These top-of-the- line accessories are designed to deliver unmatched durability in a comprehensive range of applications, increasing productivity and reducing interruptions, empowering users to forge ahead and confi dently fi nish the job. LOOKING AHEAD: DEWALT’S LONG- TERM VISION The event also served as a platform to announce DEWALT’s strategies for the coming year. With a focus on innovation, performance, and service, DEWALT aims to continue its legacy of excellence and maintain its position as a leader in the power tool industry. Furthermore, the exclusive preview highlighted the company’s dedication to advancing tool technology and enhancing user experience, promising exciting developments in the pipeline. Commenting on the signifi cance of the celebration, de Boury said: “This anniversary event is a testament to DEWALT’s century-long dedication to innovation and excellence. Bringing together our partners and end users in such a dynamic environment highlights our commitment to driving forward with groundbreaking tools and technology.” By combining cutting-edge technology with user-focused design, DEWALT continues to set the standard in the power tool industry, ensuring that it remains the brand of choice for professionals worldwide. “This event is a testament to DEWALT’s century- long dedication to innovation and excellence [and] highlights our commitment to driving forward with groundbreaking tools and technology” Julien de Boury, Marketing Director, ME & EWA at Stanley Black & Decker Day 2: DEWALT’s end users had the opportunity to drive DEWALT-branded McLaren cars Day 1: Attendees were privy to live product demonstrations and tool displays, and exciting challenges and branded simulator experiencesNext >