HomeMy WebLinkAbout1988-0809.Baijnauth et al & Bloom et al.93-02-09
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..(~, ONTARIO EMPLOYES DE LA COURONNB.
J: CROWN EMPLOYEES DEL 'ONTARIO
\; 1111 GRIEVANCE COMMISSION DE
,
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 OUNDAS STREET WEST SUtTf= 2100 TORONTO ONTARIO MSG lZ8 TELEPHONEITELEPHON~ (.: 16) 326- 388
180 RUE: OUNDAS OUE:ST BURE:AU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE ITELECOPIE (.: 16) J26- r 396
809/88, 810/88
IN THE MATTER OF AN ARBITRATION
under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GR.IEVANCE SETTLEMENT BOAllD
BETWEEN
OPSEU (Baijnauth et aI/Bloom et all
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Government Services)
Employer
BEFORE M. Watters Vice-Chairperson
I Freedman Me111ber
D. Walkinshaw Member
FOR THE H. Law
GRIEVOR Grievance Officer
ontario Public service Employees Union
FOR THE S Patterson
RESPONDBNT Counsel
Legal Services Branch
Management Board of Cabinet
HEARING November 24, 1992
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By way of an Award dated March 5, 1991 , this panel of the
Board ordered the Employer to properly classify Quantity
Surveyors and Senior Quantity Surveyors working in the Design
Services Branch of the Ministry of Government Services Pursuant
to our Award, the Employer prepared a new class standard for the
Construction Cost Analyst series The Union, in this proceeding,
asserted that this new standard does not reflect the findings
contained within our earlier decision We were asked to declare
that the standard does not adequately describe the nature of the
work performed by these employees The new class standard is
attached hereto as Schedule lA' .
On page one (1) of the class standard, the work of the
Construction Cost Analyst 2 (C C A 2) is described as including
the largest and most complex projects The Union submitted that
this language undervalues the grievors' duties It proposed that
the class standard should indicate that the responsibilities of
the C C A 2 .. generally" include such projects The Employer, in
response, argued that the new language is sufficient for purposes
of the class standards The additional language suggested was
described as merely a semantic prOblem at best " It was
asserted that the class standards, when read in their entirety,
adequately describe the work performed by these grievors.
The Board accepts the Employer's submission. We note, in
this regard, that the responsibilities of the C C A 2 are more
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fully described in the opening paragraph on page four (4) of the
class standards The heading of 'Knowledge and SkillsJ on page
five (5) also references large and complex proJects The Board
is satisfied that, in an overa 11 sense, the complexity of the
grievors' work is captured by the new class standard when read 1n
its entirety
Page two (2) of the class standard contains the following
description of the role of the Construction Cost Analyst 1
(C C A 1)
As members of the design team, they engage in the
cost control process throughout the project design
phase. . .. .. . .. . .
. Incumbents are accountable for the accuracy
and quality of cost estimates for design projects
The Union submitted that, instead, the language should state
"As cost experts on the design team, they engage in cost
control throughout the project design phase . .
Incumbents are accountable for providing
effective cost control on projects and economy of
design
It was the position of the Union that the proposed class
standards do not sUfficiently recognize the grievors as being the
"cost experts" on the design team Additionally, we were urged
to conclude that their level of accountability exceeds that
outlined in the standards In response, the Employer asserted
that the grievors' role as experts is expressly recognized in the
class standards It was further submitted that their
accountability is adequately described by the current language
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Specific reference is made of the grievers' status as cost
experts in the sixth bullet point on page two (2) of the class
standards Additionally, under the headlng of tKnowledge and
Skills' on page three (3) , there is reference to their provision
of advice and consultation on cost and design economy
Nevertheless! we think that insufficient emphasis is given in the
class standards to the grievors! role as cost experts on the
design team In our judgment! this could be corrected by
amending this part of the class standards to include a specific
reference to this role! as suggested by the Union With respect
to the second objection, the Board concludes that a more accurate
description of the level of the grievors' accountability would be
achieved by adding the Union's proposed wording to that advanced
by the Employer The provision would then read
Incumbents are accountable for the accuracy and
quality of cost estimates for design projects and
for providing effective cost control on projects
and economy of design
In our judgment, this language better reflects the nature of the
grievorsJ accountability, particUlarly as it relates to the cost
centrol process We do not wiSh to suggest, however, that these
grievors are solely accountable for cost control and design
economy Our earlier award recognizes that the design team is
also involved in this process. The Board there notes that the
Quantity Surveyors play "an integra 1 , albeit not exclusive role
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in matters of cost control.
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The first characteristic duty of the C C.A 1 listed on page
two (2) of the class standards is descrlbed as follows
Analyzing written reports outlining proposed
building functions and accomodation requirements and
developing concept of probable building configuration,
design complexity, site servicing problems, work to
protect adjoining properties, etc t and preparing cost
estimates ..
The Union proposed that this statement be replaced by the I
following description
"In the absence of solid design data, they analyze
available written reports outlining proposed building
function and accomodation requirements, develop concept
of prObable building design. such as building
configuration. design complexity, site servicing
problems, work to protect adjoining properties, etc ,
project costs on the basis of the design, prepare
budget estimates
It was submitted by the Union that the class standards do
not capture the extent of design knowledge which is integral to
the performance of the Job The Union's representative
emphasized that such knowledge is particularly important at the
commencement of a project given the lack of solid design data
. the more the C C A 1
He suggested that the scarcer the data, must
extrapolate based on their knowledge of design
The Employer acKnowledged that the C C A 1 must have a
working knowledge of architectural and engineering design
principles and teChniques. Counsel noted that such knowledge is
expressly provided for under the heading of IKnowledge and
Skills' on page three (3) of the class standards. He further
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agreed that relatively little information is available in the
early going of a project Counsel suggested that this fact is
also contemplated by the class standards, as presently worded
The Board has been persuaded that the knowledge required of
aCCA1, specifically with respect to design, is adequately
captured by the class standards We accept the Employer's
submission that it is expressly incorporated into the 'Knowledge
and Skills' portion of the standard The first two (2) bullet
points on page two (2) of the class standards suggest that the
initial work on a project is performed in the absence of solid
data After considering the point, we conclude that specific
mention should be made of that fact The Board finds that
otherwise, the present language is consistent with the tenor of
our earlier award
The third characteristic duty of the C C A.1 is described in
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the class standards as "Examining completed working drawings and
specifications and preparing detailed pre-tender estimates The
Union proposed that this language be replaced by the fOllowing
sentence uExamining completed working drawings and
specifications, determining falr market value of construction
projects by preparing detal1ed pre-tender estimates It was the
position of the Union that the grlevors, as part of their cost
control function, must ensure that the Ministry is Obtaining fair
value for the monies expended The Union representative asserted
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that the assessment of fa1r market value is a critical component
of the grievors' responsibility In response, it was submitted
by the Employer that the addition of the proposed language is
unnecessary Counsel appeared to agree that a pre-tender
estimate, based on working drawings and specifications, should
normally reflect fair market value He arguedJ however I that it
would be inappropriate to include the proposed language in a
class standard Rather, we were urged to conclude that it would
be more appropriate for inclusion in a position specification
The Board has not been convinced that the additional
language should form part of the class standards The sUbject of
fair market value was not addressed in any depth at the original
hearing Further, it was not a crucial factor in our assessment
that the grievors were improperly classified under the former
standards In the final analysis, we find the language 1n the
new class standard,to be an adequate description of the task
The fourth characteristic duty listed on page two (2) of the
class standards reads Analyzing variances between pre-tender
estimates and actual bids received The Union proposed that the
words Ute determine the reasonableness of the bid" be added. Its
representative submitted that this would better describe the
nature of the task Counsel for the Employer argued that the
proposed wording is unduly narrow and potentially just wrong
He suggested that it ignores the involvement of the design team
in issues relating to cost.
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After considering the submissions, the Board has not been
persuaded that the current language is materially deficient or
that a statement of purpose is necessary
The sixth characteristic duty listed on page two (2) of the
class standards reads
"Monitoring project design developmentt deciding on
potential for budget over-runs, and as cost experts,
recommending to the mUlti-disciplinary design team less
costly design alternatives (e g determining cost of
alternative building configurationst materi a 1 s , systems
etc ) , consulting with designers and professionals to
effectively complete their responsibilities ..
The Union suggested that this language be amended to state.
Monitoring project design development, deciding on
potential for budget overruns, providing more economic
design solutions to design team architects and
engineers (e g ), and provides remedial cost
reduction strategies in order to keep the project
within the budget as initially estimated
It was the position of the Union that the current language
does not adequately depict the grievors' role within the design
team The union's representative submitted that they have
primary responsibility to generate, assess and provide the most
economic design solution These efforts require that they deal
with architects and engineers on the design team. It was
submitted that the C.C.A l's provide leadership on this issue
given their status as cost experts. In response, it was asserted
by the Employer that the present language fully captures the work
performed by these employees Counsel stated that there is
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little difference in substance between this language and that
proposed by the Union He further suggested that the grievors'
recommendations are directed to the design team and not merely to
architects and engineers
The Board concludes that the Employer's position is to be
preferred We think that the current wording of the c1ass
standards is a sufficient description of this aspect of the work
of the C C A 1's We find that the phrase designers and
professionals adequately covers the nature of their contacts
The seventh characteristic duty of the C.C A 1 is described
in the first bullet point on page three (3) of the class
standards It provides as follows "Analyzing project costs by
building elements and systems to evaluate economy of design
solutions The Union proposed that this language be amended to
read Analyzing project to evaluate design solutions in order to
ensure economy of design" It advanced the same supporting
arguments as made with respect to the sixth characteristic duty
The Employer argued that this proposal was misleading as it
suggests final authority rests with the C C A.1 for ensuring
economy of design Counsel submitted that it ignores the
involvement of the design team, the Project Coordinator and the
Project Manager in this process He acknowledged, however, that
the grievors have an integral role to play in this area
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The Board is not convinced that the present language
misinterprets or undervalues the grievors' role vis a vis design
economy Our award expressly states that the grievors work
together with the design team to bring an excessively costly
venture back within budget Ultimately, we have not been
persuaded that the Employer's language should be changed
The 'Knowledge and Skills' requirements set out on page
three (3) of the class standards reads, in part
Work requires a thorough knowledge of and skill
in applying construction estimating techniques and
practices and providing advice and consultation on cost
and design economy
The Union proposed the following addition to the class
standards
"Incumbents must have successfully completed the
curriculum of the Canadian Institute of Quantity
Surveyors or an equivalent combination of training and
experience.
Work requires a thorough knowledge of and skill in
applying construction estimating and cost control
techniques and practices.
It was the position of the Union that the class standards
should indicate that the C C A.1 has successfully completed the
curriculum of the Canadian Institute of Quantity Surveyors or an
equivalent combination of training and experience Its
representative submitted that this level of knowledge is an
essential foundation for the performance of the Job We were
asked to find that failure to include this requirement in the
class standards would leave the grievors' wrongly classified as
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their knowledge would remain undervalued It was noted that the
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specifications for the Quantity Surveyor and Senior Quantity
Surveyor positions require graduation from an accredited
institute of technology with major courses in Quantity surveying
and construction estimating, preferably with membership in
Canadian Institute of Quantity Surveyors or an equivalent
combination of training and experience The Board was provided
with the curriculum of the aforementioned Institute We were
told that it takes four (4) to five (5) years of part-time study
to complete same It was further submitted that the class
standards should specifically mention Knowledge and Sklll in cost
control techniques as this is one (1) of the core functions of
the jOb
The Employer, in response, described this issue as one of
credential ism It was submitted that it is government policy
that selection criteria should be free of credentials except
where required by statute, regulations or where a credential is
the sole means of acquiring the skills, knowledge and ability
necessary for effective performance Counsel argued that these
preconditions dO not exist 1n this case He noted that even the
Union conceded that the knowledge and skills may be obtained
through equivalent training and experience. It was the position
of the Employer that, ultimately, the Union's proposal adds
nothing to the class standard
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The Board, after considering the conflicting submissions,
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has not been persuaded that the class standards should refer
specifically to successful completion of the curriculum 1n
question We think that, subject to one (1) caveat, the
Employer's language adequately encompasses the knowledge and
skill required in the pos1tion. In our Judgment, it would be
preferable to clearly indicate that the advice and consultation
is with respect to cost control and design economy. This would
more aptly describe the type of knowledge and skill demanded of
the C.C A 1
The fifth characteristic responsibility of the C C A.2
listed on page four (4) of the class standards reads "Liasing
with other disciplines and ministry officials to obtain costs for
items outside own area of responsibility, reviewing same against
historical records to ensure accuracy and completeness of project
estimates The Union proposed that the words other
disciplines be replaced by a specific reference to englneers
and architects" It was the Employer's response that this
proposal would overly narrow the potential group of persons
being liased with. From its perspective, the words other
disciplines capture the broad field of individuals who are
consulted by the grievors
The Board does not see a real need to add the language
advanced by the Union. We conclude that the Employer's wording
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constitutes sufficient recognition that other professionals, such
as engineers and architects, may be consulted and liased with by
the C C A 2's
The Construction Cost Analyst classifications have been
placed within the Technical Services Category It was the
Union's position that they should have been placed in the
Scientific and Professional Services Category The award in
Carlson/Maves, 596,601/90 (Kirkwood) was filed in support of the
argument that the Grievance Settlement Board can look to whether
a position has been placed in the correct category in deciding
whether a grievor is properly classified Reference was made to
a 1989 job posting for a Senior Quantity Surveyor This Employer
stated therein that it required a professional Surveyor/Estimator
The Board was also prpvided with excerpts from the Ontario Manual
of Administration which describe the positions falling within
both the Technical Services Category and the Scientific And
Professional Services Category It was asserted by the Union
that the latter category provides the best fit" for the
Construction Cost Analyst positions We were urged to conclude,
in this regard, that the grievors are required to continually
exercise the professional discipline of cost control Reference
was also made to a position specification. dated May, 1987, for
an Estimating Officer in the Ministry of Transportation And
Communications The position was classified as Engineering
Services Officer 4 (Atypical) and was assigned to the Scientific
And Professional Services Category It was further noted that the
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supervisor of this position was assigned to the same category
This Board was asked to follow this "practice
In response, the Employer advised that the positions filled
by these grievors have historically been assigned to the
Technical Services Category Counsel noted that the issue of
placement in this category was not raised at the first hearing
He, therefore, submitted that the Union shouid be barred from
contesting the issue in this proceeding He also filed a letter
dated August 15, 1991 in which the Union, in the context of
another dispute, suggested to the Director, Management Board of
Cabinet, that issues of category placement should be held in
abeyance pending the negotiation of an entirely new
classification system for the Ontario Public Service It was the
Union's assertion in this correspondence that, It makes no sense
to lift one jOb class out of an existing category and place in
another in the face of the projected overall review Counsel
argued that, in view of that position, the Union should be
estopped from arguing the issue of category in this case
Alternatively. it was submitted on behalf of the Employer
that the descriptions of the respective categories should be
flexibly construed. It was argued that the Technical Services
Category best captures the tasks performed by this group of
employees Counsel asserted that their jOb does not require "the
exercise of a scientific or professional discipline normally
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acquired through university graduation or professional
designation in which membership is controlled by recognized
associations or licensing bodies, . , so as to fall within the
scope of the Scientific And Professional Services Category
Lastly, we were asked not to follow the example cited from the
Ministry of Transportation and Communications Counsel suggested
that such example might be nothing more than "a single, sma 1 1
error which should not be compounded
The Board agrees that this issue was not raised during the
course of the earlier hearings which led ultimately to the
issuance of our award. We are inclined to agree with the
Employer that it Should have been addressed therein
Nevertheless, in an effort to expedite the final resolution of
these grievances, we are prepared to speak to this aspect of the
dispute The Board has not been persuaded that the doctrine of
estoppel is applicable here so as to preclude the Union from
advancing a claim of improper placement in the Technical Services
Category
The Board has reviewed the descriptions of the two (2)
categories of relevance to this case We have not been satisfied
that the grievors' responsibilities in respect of cost control
bring them within the Scientific And Professional Services
Category We agree with the Employer that the positions are not
caught by the preamble thereto More specifically, we are unable
to find that the grievors exercise a scientific or professional
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discipline normally acquired through university graduation or
professional designation Further, the Board concludes that the
various positions described in the Scientific And Professional
Services Category are unlike the technical positions which are
the sUbject of this case In the final analysis, we are
satisfied that the best fit is the Technical Services Category
That category includes positions where incumbents are engaged in
"the review and recommendation on types of construction,
materials, etc , and the preparation of estimates and
specifications for tendering purposes II We accept the suggestion
of the Employer that the review referred to therein could include
an economic review such as would occur in the cost control
process We also think that the review and recommendations could
have a design element In summary, the Board finds that the
above-language, while not totally descriptive Of the grievors'
jOb, provides a sUbstantially better fit than the language used
to describe positions in the Scientific And Professional Services
Category For these reasons, we have not been persuaded that
positions in the Construction Cost Analyst series more properly
fall within the aforementioned category We note that the Union
representative stated that he was not aSking for a Berrv type
order in respect of this aspect of the case Lastly, the Board
is not convinced that there is sufficient evidence before us
relating to the practice in the Ministry of Transportation And
Communications to justify the adjustment sought In any event,
we would be reluctant to follow these precedents given our
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reading of the language used to describe the two (2) categories
which are of relevance to this case
The Board declares that, sUbject to the caveats referred to
in this Award, the new class standards capture the core
duties performed by these gr;evors Further, we declare that the
level of knowledge and skill required is sUfficiently described
We trust that our findings will permit the parties to finally
resolve this long standing dispute
Dated at Windsor, Ontario this Qtb day of February ,1993.
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M V Watters, vice Chairperson
L. gember
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TEClHCAL SERVICES 1 15-02 DRAf'lIofG, DESIGN AND ES'TlMAl1NG ---1
Series ,
I Class Coae
CONSTRUC11ON COST ANALYST i
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CONSTRUCTION COST ANALYST
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The Construction Cost Analyst series covers those positions whose primary responsibilities include facilitating
the economic construction, renovation and maintenance of new or existing pubfic buildings.
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There are two levels within this series as follows' I
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CONSTRUCT10N COST ANALYST 1
This is the full working level. Responsibilities are of varied scope and moderate complexity and require
I the appfication ot considerable initiative and judgement
1 CONSTRUCTION COST ANALYST 2
I This is a senior working level. Responsibifities include the largest and most complex projects.
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EffectIve Date Issued Page
of 5
1
0808 (08189)
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Category i Growo
TEaHCAL SERVICIS I TS-42 DRAFTlNG. DESIGN AND ES'TlIIAllHG
, i Class Cooe
Senes
CONSTRucnON COST ANALYST I
I
CONSTRUCnON COST ANAlYST 1
Positions in this class prepare cost estimates for a variety of construction projects at the preliminary planning
stage and for tender, induding estimating quantities of labour, materials, equipment. overheads etc., developing
unit prices and developing projected cash-flow requirements. A$ members of the design team, they engage in
the cost control process throughout the project design phase. They are iovolved in projects such as new office
buildings, laboratory buildings, renovations to office buildings and garages, and leasehold improvements.
The preliminary cost estimates serve as the basis for establishing project budgets for approval and for
subsequent program and ministry financial planning. Incumbents are accountable tor the accuracy and Quality
of cost estimates for design projects.
Characteristic responsibilities may include the following'
. Analyzing written reports outlining proposed building functions and accommodation requirements and
developing concept of probable building configuration, design complexity, site servieng problems, work
to protect adjoining properties, etc., and preparing cost estimates.
. Interpreting preliminary sketches and reports, deciding on p/'Qbable final construction details and
requirements and preparing detailed definitive cost estimates.
. Examining completed working drawings and specifications and preparing detailed pre-tender estimates.
. Analyzing variances between pre-tender estimates and actual bids received.
. Developing project cash-flow projections by deciding on effect of factors such as project size, complexity,
location, sequence of construction operations, seasonal productivity ete.
. Monitoring project design development deciding on potential for budget over-runs, and as cost experts,
recommending to the multi~iscip6nary design team less cosUy design alternatives (e.g., detennining CXlst
of alternative building configurations, materials, systems etc.), consulting with designers and
professionals to effectively complete their responsibilities.
Effective Date Issued Page
') of
2 5
0808 (08189)
@- :_,j.,SS S-..\NDARDS
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Service f.
:ommlSSiCr.
Ontar,o
: Caregory : GrOUD -
lECHNCAL SERVICES I TS-02 DRAFTING, OESlGN AND ESl1IIA lING
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I Class Cooe
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CONSTRUC"nON COST ANALYST I
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i . Analyzing project costs by building elements and systems to evatuate economy of design solutions.
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I . Performing analysis and checks on claims for extras and deductions from original contract prices;
recommending action on the claims;generaJIy the recommendation forms the basis for the negotiated
resolution.
. Checking estimates. prepared by consultants. identifying errors and omissions and resoMng same with
appropriate party
Knowledae and Skills
Work requires a thorough knowledge of construction materials. quantity requirements, methods and building
systems and a working knowledge of architectural and engineering design principles and techniques. Abifity to
understand and apply the content of design drawings and reports. Work requires a thorough knowledge of and
skill in applying construction estimating techniques and practices and providing advice and consultation on cost
and design economy Good problem-soMng. analytical. interpersonal and communications skills.
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Effective Date Issued Page
of
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0808 (08189)
~ :;,VI) :L..ASS 3~ANDARCS
. Sennee
CommiSSion
, Omano
Category ! Group
I
TEClllCAL SERVICES I TS-02 DRAFTlNG, DESIGN AHD ES11IIA11NG
Serres i Class Cooa
CONS11WC1IONCOST ANALYST i I
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CONSTRUCTION COST ANALYST 2
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Positions in this class are responsible for the largest and most intricate proiects. While they may perform all of
the duties of level 1, they deal with added complexities arising from the types of projects assigned, such as
difficult renovations; e.g. historical buildings or large new construction projects with complications due to
complexity of design, overlapping of cost responsibilities, lack of precedents.
Other characterisUc responsibilities may include the following:
. Estimating costs by anticipating nature, scope and quality of design from limited design information
available and by determining costs allowances for many variables and unforseen problems and design
developments.
. Preparing tender estimates from almost completed working drawings and developing cash.flows for
same.
~ Developing multi-year cash.flow projects.
. UtiDzing fife cycle costing methodologies to provide specialized insights into design economies.
. Uaising with other discip6nes and ministry officials to obtain costs for items outside own area of
responsibi6ty, reviewing same against historical records to ensure accuracy and completeness of project
estimates.
. Recommending solutions for contract disputes.
. Providing technical coordination and guidance to level 1 cost analysts assigned to assist on very large
projects or working in an underfill capacity
Effective Date Issued Page
of
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~ C,V:I SLASS STANDARDS
Service ~
CommiSSion
Or.tano
Category Group --
TECfllCAL SERVICES TS-02 ORAFnNG., DESIGN AND ESiIIIAl1NG
Series Class Code
CONS1RUC'TION COST ANALYST
Knowledae and Skills -
In addition to the knowledge and skill required at level one, this work requires extensive knowledge of and skill
in applying construction estimating techniques and practices in order to provide appropriate advice and I
consultation to the design team and senior officials on large and complex projects. Good technical knowledge
of architectural and engineering design. Thorough knowledge of life cycle costing and value management
methodology Good leadership, coordination, interpersonal and oommunication skills. Excellent analytical and
problem-soMng skills to deal with many variables and design developments.
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Effective Date Issued Page
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0808 (081891