CIC Blog: 2018
Catherine Cobb BEng (Hons) TMICE MIHE
Traffic Signals Graduate Engineer
My name is Cath and I’m an Engineer…a disabled engineer at that. I lost my left leg to cancer at the age of 7, and from the day they gave me my very first artificial leg I knew what I wanted to be when I grew up.
But I encountered barriers when pursuing my goals. my first barrier was school, I went to see my school careers advisor for him to turn around to say ‘ahhhh Cath, you have 2 options, the first option it secretarial work so you can sit down all day or you can go on benefits and let the state keep you’. This just made me more determined to be an engineer.
I applied for many jobs only to be told ‘oh I couldn’t possibly employ you, you haven’t got very nice legs’ or ‘can you carry the tea?!’.
Working in a machine shop in a male dominated industry was also challenging, I would be expected to do more than my male counter parts plus they would ask me to fetch and carry things that were far too heavy for me, but I did it none the less. Why they wanted to break me was a complete mystery to me! I only wanted to work with them as an equal.
Working at Amey turned my life around, I told them at my interview that I was disabled and they never blinked. They are the only company that I have worked for that have helped me in every aspect of my career with them.
Companies could do more for the disabled employees if they literally just sit down with them and just talk, ask them what needs they might have. We don’t bite honest!
Companies benefit from employing disabled people as we see things in a way that others don’t, we can see where the hazards are and how to deal with them quickly and safely. Disabled people show true commitment to their employers and continue to do so every day as they are grateful for the opportunities they have been given but to be fair you should overlook their disability and employ them on their merits, as Amey did with me.
I asked a colleague of mine what it was that I brought to the company, she replied…’you, just you, I don’t see you as disabled’.
Have discussion groups say once a month to highlight if there are any problems that need addressing. Perhaps the disabled person to keep a log of things they struggle with, I know I have a problem carrying my laptop to which I did talk to my manager about, it was sorted immediately. Companies could also consider support groups of a variety of disabilities, Limbless Association for example.
Having a confidant helps me in my work place, someone I know I can talk to honestly and openly if I have a problem. Companies would benefit in training staff in how to recognise when someone is struggling as most disabled people are stubborn and will bottle their feeling up inside so they don’t want to cause a fuss.
As an Amey Scope Ambassador as part of the ‘End the Awkwardness’ campaign my role is to educate people on how to approach a disabled person and how to talk to them…quick tip…talk to them just the same as anyone else!
If I can inspire just one person to achieve their goals by my life experiences then it’s all been worth it. Some people think they lose a limb that their life is over… it’s not, it’s the start of a brand new one… I don’t consider myself as disabled, I’m just Cath with a piece missing! (not necessarily my leg!).
Contributor: Catherine Cobb is a Traffic Signals Graduate Engineer at Amey. Catherine is also an Amey Scope and Inclusion and Diversity Ambassador.
Chartered Arbitrator and Engineer, Adjudicator, Mediator
Before commencing adjudication, you should audit your adjudication risk. Risk audit is a process, which helps you make sensible commercial decisions. It highlights risks, their nature and scope, and allows you to determine how to prevent or reduce the risks.
One way to evaluate adjudication risk is to use a decision tree. Widely used in engineering, a decision tree can help you decide the dispute resolution strategy most likely to secure the best financial outcome for you. Graphical representation of risk helps you to make a reasoned assessment of the adjudication outcome, and allows you to compare that outcome to the costs you will incur in adjudication, and to any settlement offer. If you have suffered a loss of cash flow because of non-payment and invested in preparing a detailed claim, there will always be a maximum recovery amount. The maximum is the total of the quantum of all the items claimed without deductions. It is natural for senior management to focus on the maximum amount possible; this is the wrong approach. Experience shows that “independent experts” often provide different credible quantum calculations, seemingly underpinned by objective standards. The maximum amount is only ever an aspirational figure, and to imbue realism I recommend the use of a decision tree to calculate an “expected cash equivalent” (ECE). Competent mediators will use the decision tree method, or a variation of it, to help destabilise the parties and move them from entrenched positions.
In an adjudication concerning the modernisation and installation of lifts, the Referring Party said that it was entitled to additional money because of 17 variations. The Responding Party said that it was entitled to deduct money because of defective and incomplete work. Figure 1 shows how a decision tree can be used to chart the lifts dispute. The Referring Party said one variation was for Lift Builders Work, another variation was for dealing with Inherited Faults, etc. The Responding Party said that it wanted credit for Unfinished Items.
To grow the decision tree, each variation becomes a branch of the diagram, and determines the likely ECE based on statistical probability. Each branch of the decision tree represents a monetary decision event. The tree structure links the outcome of occurrences, and shows how one decision leads to the next. The use of branches indicates that each variation or deduction is mutually exclusive to another.
The efficient and normal way for an adjudicator to consider variations or deductions is first to decide liability and then to decide quantum. If the adjudicator decides that there is no liability, there is no need for him to look at quantum. However, for you, once the branches are in place it is easier to populate decision tree information starting with quantum and then moving to liability. In the lifts dispute the Lift Builders Work variation has a possible high valuation of £40,000 and a possible low valuation of £10,000. You assess that there is a 75% (0.75) probability that the adjudicator will decide the high valuation is correct, and there is a 25% (0.25) probability that the adjudicator will decide the low valuation is correct. Factoring the high and low valuation with their associated probability leads to a Net Quantum Outcome of £32,500. Often the decision tree has three sub- branches representing a high, medium and low valuation. Whatever number, it is essential that the probability of the branch events occurring always add to 100% (1.0).
Figure 1 Decision Tree in relation to the Lifts Dispute
To make the decision tree robust it is important to support each probability with reasons. Intuition is not a reason. Not preparing a full list of reasons makes the decision tree branches brittle, and is a common decision tree malady. If you identify the reasons why the adjudicator will decide that the low valuation is correct, you are identifying the scope and nature of the risks that you face. Risk is a measure of the probability and severity of adverse effects. As you may be able to do things to reduce the risks, change the risk consequences, or share the risk with another party such as a sub- contractor, there might be a sequence of linked dispute decision trees. Decision trees can be drafted using paper and pencil, by using a PC based spreadsheet such as Microsoft Excel, or proprietary low cost decision tree software. Using a spreadsheet or software makes it easy to update the decision tree quickly when there is new information that changes your assessment of branch risks or outcomes.
Linked to the Net Quantum Outcome is the likelihood of the adjudicator deciding that one party or the other has liability for the variation. You assess that there is an 80% (0.80) probability that the adjudicator will decide that the other party is liable for the Lift Builders Work variation, and a 20% (0.20) probability that you are liable. If the adjudicator decides that you are liable, you get nothing. Multiplying the probability 80% (0.8) that the other side is liable, by the Net Quantum Outcome, £32,500 gives the Lift Builders Work variation ECE of £26,000. Populating the Figure 1 decision tree with the Lift Builders Work and Inherited Faults variations, and the Unfinished Items deduction gives an ECE adjudication outcome of £37,000. This contrasts starkly with the maximum, amount possible £64,000.
Each party might spend £15,000 in claims consultants and lawyers’ fees to assist it. Except in very limited circumstances, in the UK a party’s costs in preparing for and participating in adjudication are not recoverable. However, the adjudicator could decide that you should pay all of his fees and expenses, or a percentage thereof. Based on the above, if the ECE adjudication outcome is £37,000, and your adjudication professional fees budget is £15,000, irrespective of whether you are risk- adverse or not, accepting an offer to settle for £22,500 makes sense. This would give you £500 more than the ECE, and you can invest your companies’ time pursuing other more profitable opportunities.
If you are adjudicating in a jurisdiction such as Malaysia, where the party’s costs in preparing for and participating in adjudication are recoverable, then not accepting an offer of £37,500 leads you to liability to pay the other parties’ costs, which if not taxed, could reduce your net recovery to £37,000- £15,000 = £22,000.
Contributor: Niall is Chair of the CIC Adjudicator Nominating Body Management Board. He is a Chartered Arbitrator, Building Services Engineer, Mechanical Engineer, Information Systems Engineer and Chartered Builder. He provides arbitration, adjudication and mediation services in commercial technology, engineering and construction disputes. https://www.linkedin.com/in/adjudicator
Julie Fleck OBE, MRTPI
British Standard Committee B/559 Member
A new British Standard has been published to help built environment professionals create an inclusive environment for everyone – this is not just a moral or social issue but a statutory duty
We learnt last summer of the stark reality that, despite years of antidiscrimination legislation, disabled people are still finding their lives needlessly restricted by features of the built environment. The Women and Equalities Committee Inquiry into Disability and the Built Environment reminded us all that inclusive design is not just a nice to do. All built environment professionals, through the critical role we play in planning, building and managing our towns and cities, have a statutory duty to ensure that disabled and older people have the same opportunities as non disabled people to live full and independent lives. We as must all respond by ensuring that we no longer allow barriers to inclusion to be designed built or maintained.
Do you have the skills and knowledge to plan to include?
Do you have the technical knowhow to judge whether a development proposal will provide an inclusive environment or not? Do you know whether you overlook the critical detail that will make a building or place easy and comfortable to use?
We are getting better at assessing wheelchair accessibility, but do we really understand how to design buildings and spaces that are accessible and usable by blind and partially sighted people, or by people whose walking ability is limited or whose perception of space requires legible routes and predictable layouts. With the loss in many local authorities of the expert access officer on hand to ask, we all need to recognise what we don’t know and brush up on our technical skills.
A new British Standard
If you need to refresh your skills, the new British Standard, a revised and updated version of BS 8300:2010, provides an opportunity for you to gain a greater understanding of inclusive design and help you ensure that your development adequately addresses accessibility.
Published in January, the Code of Practice BS 8300:2018 Design of an accessible and inclusive built environment is divided into two parts. Part 1: External Environment explains how the external built environment, including streets, parks, landscaped areas, the approach to a building and the spaces between and around buildings, can be designed, built and managed to achieve an inclusive environment. It complements and is intended to be read in conjunction with Part 2: Buildings.
Advice given in Part 1 incorporates material relating to the external environment that was in the original BS 8300:2010 but it has been expanded to include wider aspects not previously included, such as lighting, assistance dog toilets, water features and public art. Advice is also given for specific locations such as access to beaches, play areas, parks and gardens, and nature trails.
Part 2 has updated and expanded the advice on nearly all aspects of the accessibility of buildings. Although the standard recognises that more research is needed before comprehensive advice can be given to address ‘Designs for the Mind’, the new code does include advice on, for example, quiet spaces. This includes when and what to provide in a dedicated room or space where people can find peace, calm and tranquillity in order to manage sensory / neurological processing needs or spend time in prayer or contemplation.
Integrating inclusive design principles into the development process
For the first time, the British Standard has included advice on how to integrate inclusive design principles into the development process. Recognising the importance of addressing access and inclusion from the outset of any project it recommends, in Section 4, the development of an Inclusive Design Strategy as part of any strategic vision, with the principles of inclusive design embedded into the initial concept brief. Budget estimates, procurement processes and development agreements should make explicit reference to meeting best practice, helping to establish the principles of an inclusive development prior to the drafting of master plans and outline designs.
This should make it easier for designers to demonstrate how access and inclusion has been addressed in the Design and Access Statement submitted at planning application stage. If the commitment to an inclusive development process has been championed by the developer from the outset, monitoring compliance with best practice standards throughout the construction phases should also be easier and more transparent.
The masterplan and outline planning stages provide the opportunity to address the accessibility of the site and building layout. Section 5 sets out guidance on site planning, the position of buildings and their features, navigation, orientation and way finding, the legibility of space, and the principles of two senses (audible / tactile and visual).
Early consideration of the impact topography and the location of buildings across the site, the position of entrances and other features and how they are arranged can help to maximise their accessibility.
If you want to hear more about the new BS 8300:2018 register here for the CIC Inclusive Environment Briefing February 22nd at the RICS Headquarters in London.
Use the advice and guidance in BS 8300: 2018 and help make inclusion the norm not the exception
Contributor: Julie Fleck OBE, MRTPI is the RTPI representative on British Standard Committee B/559 the committee responsible for the development of BS 8300.
Beale & Company
A number of companies within the Carillion group have been placed in compulsory liquidation. The Official Receiver has been appointed as liquidator, with support from PwC. It has been confirmed that there is no prospect of any return to shareholders.
Given the size of Carillion, the UK’s second-biggest construction company, with 43,000 employees and contracts on a wide range of projects, including a number of flagship infrastructure projects, this will inevitably have a significant impact on the UK construction sector as a whole.
Official advice from PwC is:
“Unless advised otherwise, all agents, subcontractors and suppliers should continue to work and provide goods and services as normal, under their existing contracts, terms and conditions. You will get paid for goods and services you supply from the date of the Official Receiver’s appointment onwards. Over the coming days we will review supplier contracts and we’ll contact you concerning these soon. Goods and services you supply during the liquidation will be paid for. A letter will be sent to suppliers shortly containing further instructions.”
Our view is that any firm that has exposure to a Carillion group company must carefully assess its position. PwC’s statement that “you will get paid for goods and services” only applies for work from today. A creditor might be in a better position if it were to terminate its contract (though this will depend on the termination provisions and its particular circumstances).
We suggest the following:
1. Immediately conduct an internal review of your exposure to Carillion, its subsidiaries and related joint ventures.
2. Collate all contractual documentation to enable you to review your legal options.
3. Be extremely cautious if asked to enter into a new contract with the liquidator:
(i) pay close attention to the contractual terms, and consider whether to enter into the contract at all;
(ii) seek to negotiate favourable terms around payment: ensure that the payment timeframe is short, that you have a right to suspend and terminate for non-payment, avoid granting the liquidator/Carillion the right to set-off your fees against amounts due under other contracts, and if supplying materials, incorporate an effective retention of title clause; and
(iii) avoid agreeing contractual novation provisions, or if these are incorporated, seek to incorporate a requirement for your consent to novation of the contract.
4. If already in a contract with Carillion, ensure that payment notices are served on time. This is essential for maintaining your contractual entitlement to payment. If you are not paid, consider whether you have a right to suspend for non-payment or under contractual insolvency provisions.
5. Keep a close eye on developments, as these may occur rapidly, PwC have set up a website, https://www.pwc.co.uk/carillion, and you should monitor this as well as the news.
6. Where collateral warranties are demanded by third parties on existing contracts where you are employed by Carillion, carefully consider whether you are obligated to grant these, as you may be able to resist providing them if you are not paid.
7. There may be an opportunity to renegotiate unfavourable contractual terms with the liquidator or if a new entity buys a part of the Carillion business with which you have contracted.
8. Depending on your contractual terms, consider whether you can suspend any intellectual property licences. This might put you in a strong negotiating position with the liquidator.
9. Consider whether there are any contracts that you may wish to ‘take over’ from Carillion; if so, approach the liquidator to discuss.
10. Where you have appointed sub-contractors on a Carillion project, make sure you review those terms and consider what action needs to be taken.
Contributor: James Hutchinson is a Partner at Beale & Company. If you have any queries in relation to the above, or any concerns in relation to the Carillion liquidation and issues arising out of it, please contact James on +44 (0) 20 7469 0408 or at firstname.lastname@example.org.