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Construction
1-GENERAL:
1.1 These guidelines are for the operation of a Regional Disputes Review Board (RDRB), established in accordance with Article 8-3.7 of the Specifications, and are intended to be flexible to meet circumstances that may arise during the resolution of an issue.
1.2 The role of this RDRB is to provide specialized expertise in technical areas and in administration of construction contracts to assist the Department of Transportation (Department) and the Contractor in resolving disputes in a timely and equitable manner. Within the context of Partnering, the RDRB serves to assist parties in getting over the rough spots.
1.3 As provided in the specification contained in the construction contract, except for their participation in the RDRB activities, neither the Contractor nor the Department will solicit advice or consultation from the RDRB or it members on matters dealing with the conduct of the work or resolution of problems. During meetings, site visits and hearings, no RDRB Member will express any opinion concerning the merit of any facet of a case or a potential dispute.
1.4 Upon request, the Department will furnish to each of the RDRB Members all documents necessary for the RDRB to perform its function including copies of all contract documents, plus periodic reports such as Engineer Weekly Summaries, minutes of the weekly progress meeting, Submittal Register, Work Order Register, Supplemental Agreements Register and Claims Tracking Log that are pertinent to the dispute being considered. Also, at the time a dispute is presented to the RDRB for consideration, the Department/Contractor will submit to the RDRB Members, Supplemental Agreements, written instructions issued to the Contractor and other project documentation pertinent to the issue as necessary for the RDRB to have a complete understanding of the matter.
1.5 It must be emphasized and firmly understood that individual RDRB Members are not the "representative of" or "advocate for" either party. The entire RDRB will function as an objective, impartial and independent body at all times.
1.6 In order to avoid any suggestion of partiality, there should be no individual communication in regard to the project between RDRB members and employees of the Contractor or Department during the life of the RDRB. THE PARTIES SHALL DIRECT ANY MATTERS NEEDING ATTENTION BETWEEN MEETINGS OF THE RDRB TO THE CHAIRMAN OF THE RDRB.
2-PRELIMINARIES
2.1. The RDRB members should agree to reserve at least one day per month for hearings to avoid scheduling conflicts. Ex. the third Thursday
2.2 The Department should add the Regional Dispute Review Boards to the Preconstruction Conference Agenda for each project.
3-SUBMITTAL OF DISPUTES TO RDRB:
3.1 The RDRB encourages DOT and the Contractor to resolve potential disputes without resorting to use of the RDRB. However, when it becomes apparent that resolution is unlikely to be accomplished by negotiation, a dispute should be promptly moved to consideration by the RDRB. An escalation process set up during Partnering should be expedited to the greatest extent possible.
3.2 When the parties exhaust the written protest procedure set out in the RDRB Specification (keeping in mind that, by agreement of the parties, steps may be omitted and time periods changed) either party can refer the dispute to the RDRB. If the responding party needs additional time to prepare to present their side of the issue(s), the parties should strive to mutually agree to a future date for presentation to the RDRB. Should a mutual date not be agreed upon, the RDRB will generally allow one 30-day continuance for the unprepared to prepare.
3.3 The RDRB will focus its written recommendation on matters of entitlement, allowing the parties to subsequently negotiate on the monetary damages. For relatively simple disputes, if both party’s request and sufficient documentation is submitted, the RDRB may also make a concurrent recommendation on monetary damages. When matters of entitlement and monetary damages have been bifurcated, if the parties are unable to reach agreement on monetary damages, this matter may be submitted to the RDRB. Unless otherwise agreed to by the parties, the matter of monetary damages should be submitted to the RDRB within 30 days after the RDRB issues its recommendation on entitlement. If either the contractor or FDOT request a detailed analysis and report on the quantum issue, the RDRB, the contractor, and FDOT must agree on the scope of the additional services requested, the amount of the additional compensation expected, and how the contractor and the FDOT will compensate the RDRB prior to the RDRB engaging in the detailed analysis.
3.4 The party referring a dispute to the RDRB shall submit to the Chairman of the RDRB a written request for a hearing with copies to the other RDRB Members and concurrently to the other party to the contract. Referral to the Board is accomplished by providing a position paper outlining the nature and scope of the dispute or claim and describing the basis for entitlement to the dispute or claim. Only disputes or claims that have been duly preserved under the terms of the Contract, as determined by the Board, will be eligible to be heard by the Board. Requests for equitable adjustment must be certified as required by 4-3.2. Claims that are referred to the Board must be in compliance with 5-12. This request shall be accompanied by a summary of the issues on which the dispute is based in sufficient detail for the RDRB to gain an understanding of the dispute and for the other party to prepare a response. A listing of all subcontractors and parties (including Designer and CEI) to the project shall be included.
3.5 Any disputes or claims that were not resolved prior to Final Acceptance of the project pursuant to 5-11 must be referred to the Board within 90 calendar days after Final Acceptance for projects with an original Contract amount of $3,000,000 or less, and within 180 calendar days after Final Acceptance on projects with an original Contract amount greater than $3,000,000. Only duly preserved disputes or claims will be eligible to be heard by the Board. Failure to submit all disputes or claims to the Board within aforementioned timeframe after Final Acceptance constitutes an irrevocable waiver of the Contractor's dispute or claim.
3.6 The other party may submit a written position statement addressing the issues on which the request is based. This position statement must be submitted to all RDRB members and concurrently to the party requesting a hearing. If the other party elects to not submit a written position statement in advance of the hearing, they shall notify the RDRB of that decision within 10 calendar days after receiving the written request for a hearing and will not be allowed to submit a written position statement during the hearing.
3.7 Full position papers will be submitted by both parties and must be accompanied by supporting documents which are numbered and referred to in the position paper by page number. In the interest of expediting consideration of a dispute, the RDRB encourages the parties to cooperatively prepare a joint compilation of all pertinent documents with pages or exhibits consecutively numbered for ease of reference, for use by the parties in preparing submittals and during the hearing. The full position papers will be submitted directly to each of the RDRB members and to the opposing party 15 calendar days prior to the hearing.
3.8 In particularly large and complex disputes, the RDRB may meet privately to review the information provided, discuss the procedures to be followed in hearing the dispute and the method of presentation to be followed. The RDRB may also call a pre-hearing conference to discuss these issues with the parties.
3.9 The parties may submit to the RDRB statements in rebuttal to the other party's position statement provided that such statement is submitted to all RDRB Members and the other party so as to be received by them not less than 5 calendar days prior to the date scheduled for the hearing. 3.10 At least 5 calendar days prior to the date scheduled for a hearing, each party must submit to the RDRB Members and to the other party a list of the persons who will represent them at the hearing.
4-CONDUCT OF HEARING ON DISPUTES:
4.1 Hearings will be conducted at a location selected by the Chairman after consultation with the Department and the Contractor. Representatives of both the Department and the Contractor will be present. Any cost for the facility used for a hearing will be equally borne by the parties.
4.2 Hearings will be conducted in an informal manner. The party initiating the hearing will first discuss the dispute followed by the responding party's rebuttal. Each party will be allowed successive rebuttals until all information has been presented. The RDRB Members may ask questions as needed for them to have a complete understanding of the evidence. In large dollar amount disputes or disputes involving complex issues, additional day/days of hearings may be necessary in order for the RDRB to fully understand and consider all evidence presented by the parties. Should new information be presented that is not contained in the position or rebuttal statements previously submitted to the RDRB and the other party, the hearing will be continued until such time as the other party has had an opportunity to review, research, and rebut such new information. The continuance should not exceed 30 days.
4.3 Attorneys are generally discouraged from attending RDRB Meetings or Hearings. Any participation in a hearing by legal counsel or independent claims or technical experts will be for the sole purpose of facilitating a party's presentation. Legal counsel may not (a) examine directly or by cross-examination any witness,(b) Object to questions asked or factual statements made or related during the hearing or (c) Make or argue legal motions. Legal counsel and independent experts present must not make statements of fact for or on behalf of a party or witness and shall at all times comply with the instructions of the RDRB. The RDRB may ask counsel for either party to address legal issues that the RDRB determines would assist it in resolution of the dispute before it for consideration.
4.4 In the interest of keeping hearings completely informal, generally no formal record will be kept of a RDRB hearing. Any departure will depend on the nature and magnitude of the Dispute and the attitude of the parties. Audio and/or video recordings are discouraged and may be made only if agreed to by both parties. Formal recording of a hearing by a court reporter requested by a party will be allowed only if agreed to by the other party. The party requesting a record bears the court reporter costs. Both parties and the RDRB Members shall receive copies of any transcript made.
5-ISSUANCE OF RDRB RECOMMENDATIONS:
5.1 The RDRB will meet in private following the hearing to formulate their recommendations. Recommendations will be based on the pertinent contract provisions and the facts and circumstances involved in the dispute. All individual views of the RDRB Members will be kept strictly confidential.
5.2 A written recommendation, using the format below, including the underlying logic will be provided to the parties generally within 15 working days from the receipt and presentation of all information.
6-RECONSIDERATION OF RDRB RECOMMENDATIONS:
6.1 Although both parties should place weight upon the recommendations of the RDRB, they are not binding. Either party may appeal a recommendation to the RDRB for reconsideration. Reconsideration should only be considered when there is new information to present or what was assumed to be agreement on factual matters turns out to be incorrect, and clarification is needed. However, reconsideration should be the exception, not the rule. Rearguing the same issue on the same facts is not productive.
6.2 When the RDRB is of the opinion that a request for reconsideration or clarification is meritorious and will likely lead to resolution of the dispute by the parties, it will honor that request. Usually, an additional hearing is not needed. The RDRB reviews any new information together with commentary from the parties and, if necessary, prepares a revised recommendation or clarifies its recommendation in response to the matters raised.
RECOMMENDATION
Recommendation of Dispute Review Board
Dispute No. __ District _____
Hearing Date: _______ Contractor________________
DISPUTE (include project description, Contract Number, Financial
Project ID, and summary of disputed issue)
CONTRACTOR'S POSITION
DEPARTMENT'S POSITION
