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Construction
1-GENERAL:
1.1 These procedures are for the purpose of providing guidelines for operation of the Disputes Review Board (DRB) and are intended to be flexible to meet circumstances that may arise during the life of the project.
1.2 The role of this DRB 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 Board serves to assist the parties in getting over the rough spots.
1.3 As provided in the DRB Specification contained in the construction contract, except for their participation in the DRBs activities, neither the Contractor nor the Department will solicit advice or consultation from the DRB or it members on matters dealing with the conduct of the work or resolution of problems. During meetings, site visits and hearings, no DRB Member will express any opinion concerning the merit of any facet of a case or a potential dispute.
1.4 The Department will furnish to each of the DRB Members all documents necessary for the Board 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. Also, at the time a dispute is presented to the DRB for consideration, the Department/Contractor will submit to the DRB Members, Supplemental Agreements, written instructions issued to the Contractor and other project documentation pertinent to the issue as necessary for the DRB to have a complete understanding of the matter.
1.5 It must be emphasized and firmly understood that individual Board Members are not the "representative of" or "advocate for" the party which selected them. The entire Board will function as an objective, impartial and independent body at all times. In order to avoid any suggestion of partiality, there should be no individual communication in regard to the project between Board members and employees of the Contractor or Department during the life of the Board. THE PARTIES SHALL DIRECT ANY MATTERS NEEDING ATTENTION BETWEEN MEETINGS OF THE DRB TO THE CHAIRMAN OF THE DRB.
2-FREQUENCY OF REGULAR MEETINGS:
In order for the DRB to become familiar with the project circumstances, it will generally meet once per month during the first 3 to 6 months and no less than quarterly thereafter, as mutually determined by the Contractor and the Department. If conditions warrant, the Contractor and the Department, may reduce/increase the time between meetings to better serve their needs. Factors to be considered when setting the time between meetings include work progress, occurrence of unusual events and the number and complexity of ongoing or potential disputes. On projects with unresolved issues, the Board will meet at least monthly until the unresolved disputes are resolved.
3-AGENDA FOR REGULAR MEETINGS:
3.1 The Chairman will develop an agenda for each regular meeting in accordance with the guidelines contained in the DRB Specification. The parties should not be bashful in bringing to the Board's attention any disputes/issues encountered (past or present).
3.2 At the conclusion of each meeting, the DRB will do a field inspection of active sections of the work accompanied by representative of both the Contractor and the Department. Any areas of the project that are being impacted by a potential issue will be pointed out by the parties.
4-MINUTES OF MEETING:
The Department will provide minutes of the regular meetings which will be distributed to all parties for comment, addition, and correction. Minutes as amended will be adopted at the next meeting.. No minutes will be kept of hearings in regard to a dispute.
5-SUBMITTAL OF DISPUTES TO DRB:
5.1 The Board encourages DOT and the Contractor to resolve potential disputes without resorting to use of the DRB. However, when it becomes apparent that resolution is unlikely to be accomplished by negotiation, a dispute should be promptly moved to consideration by the DRB. An escalation process shall be established, between the parties, that clearly outlines the steps leading to submission of an issue to the Board. This escalation process should be set up during Partnering (where applicable) and should be expedited to the greatest extent possible.
5.2 When the parties exhaust the written protest procedure set out in the DRB 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 DRB. However, 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 DRB. Should a mutual date not be agreed upon, the DRB will generally allow one 30-day continuance for the unprepared to prepare.
5.3 The DRB will generally focus its written recommendation on matters of entitlement, allowing the parties to subsequently negotiate on the monetary damages. For relatively simple disputes, if both parties request and sufficient documentation is submitted, the DRB may also make a concurrent recommendation on monetary damages. When matters of entitlement and monetary damages are separate, if the parties are unable to reach agreement on monetary damages, the matter of entitlement may be submitted to the DRB. Unless otherwise agreed to by the parties, the matter of monetary damages should be submitted to the DRB within 30 days after the DRB issues its recommendation on entitlement.
5.4 The party referring a dispute to the DRB shall submit to the Chairman of the DRB a written request for a hearing with copies to the other DRB 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 DRB to gain an understanding of the dispute and for the other party to prepare a response.
5.5 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.
5.6 Upon receiving a copy of the written request for a hearing before the DRB, the responding party may submit a concise written issue statement on a dispute for which a hearing before the DRB has been requested. This issue statement must be submitted to all DRB members and concurrently to the party requesting a hearing.
5.7 The DRB Chairman will schedule a hearing no earlier than 20 calendar days after receiving the request for a hearing, except that this time may be reduced for simple or urgent matters or in order to schedule a hearing in conjunction with the next Regular Meeting of the DRB.
5.8 Full position papers shall 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 DRB 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 15 calendar days prior to the hearing directly to each of the DRB members and to the opposing party.
5.9 In large dollar amount disputes or disputes involving complex issues, the DRB 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 DRB may also call a pre-meeting conference to discuss procedures with both the Department and the Contractor.
5.10 The parties may submit to the DRB statements in rebuttal to the other parties position statement provided that such statement is submitted to all DRB 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.
5.11 At least 5 calendar days prior to the date scheduled for a hearing, each party must submit to the DRB Members and to the other party a list of the persons who will attend and/or represent them at the hearing.
6-CONDUCT OF HEARING ON DISPUTES:
6.1 Hearings will normally be conducted at the job site with representatives of both the Department and the Contractor present. Should the jobsite facilities be inadequate for the number of participants expected, a meeting site agreeable to the parties will be selected and arranged for by the Department. Any cost for the facility will be equally borne by the parities.
6.2 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 DRB 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, an additional day/days of hearings may be necessary in order for the DRB 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 Board and the other party, the hearing may be continued until a protesting party is afforded the opportunity to research and rebut the new information. This continuance should not exceed 30 days.
6.3 Attorneys are generally discouraged from attending DRB 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 parties 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 DRB. The DRB may ask counsel for both parties to address legal issues that the DRB determines would assist it in resolution of the dispute before it for consideration.
6.4 In the interest of keeping hearings completely informal, generally no formal record will be kept of a DRB 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. The Board will be provided 4 copies of the transcript and the other party will be provided 1 copy.
7-ISSUANCE OF DRB RECOMMENDATIONS:
7.1 The DRB will meet in private following the hearing to formulate their recommendations. The recommendations will be based on the pertinent contract provisions and the facts and circumstances involved in the dispute. All individual views of the DRB Members will be kept strictly confidential. Should there be additional questions, the Chairman may schedule a follow up hearing.
7.2 A written recommendation, using the format below, including the underlying logic will be provided to the parties generally within 15 working days from the hearing. Every effort will be made to reach a unanimous decision. If the DRB is unable to reach a unanimous recommendation, the dissenting member may prepare a minority report to be included in the written recommendation, but the DRB Member preparing such report will not be revealed. Dissenting opinions are discouraged and should be offered only when the dissenting member strongly disagrees with the consensus opinion. Any request for clarification will be made through the chairman and answered in writing by the Board as a whole.
8-RECONSIDERATION OF DRB RECOMMENDATIONS:
8.1 Although both parties should place weight upon the recommendations of the DRB, they are not binding. Either party may appeal a recommendation to the DRB 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.
8.2 When the DRB 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 DRB 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.
PROTOTYPE OF PERIODIC MEETING AGENDA
Project Description
Owner/CEI
Contractor
Date:__________
Contract Day: Actual Day/Total Days: _______/_______
Meeting Number:______ Percent Complete
(Days) ____ / ____
Notice to Proceed _______ Original Contract
Amount: ___________
1st Chargeable Work Day_______ Current Contract
Amount: ___________
Orig. Contract Time____ Revised______ Amount Earned to
date:_____________
Orig. Contract Compl Date________
Percent Complete ($) ______________
Revised Contract Comp’l _________
Scheduled Percent Complete ($) ES/LS _______ / ________
Job Incentives/Bonus?_________________________________
Disputes Review Board
Meeting Agenda
a. Sign-in of
all participants
b. Opening
remarks of Chairman
c.
Description by Contractor of:
(1) Work accomplished since last meeting.
(2) Current status of the work schedule.
· Days gained/lost since last meeting. Reason?
(3) Schedule for future.
(4) Potential problems/challenges.
(5) Proposed solutions to these problems.
d. Discussion by Engineer of:
(1) Work schedule as he views it.
(2) Potential new disputes or claims.
(3) Status of past disputes and claims
(4) Other controversies.
e. Set a tentative date for the next meeting.
f. Revise/Adopt Previous Meeting Minutes
g. Tour of Project
1. Overview
2. Impacts (Present or Past)
RECOMMENDATION FORM
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
RECOMMENDATION
