Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Construction Contract Claims, Changes, and Dispute Resolution
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Other Titles of Interest Interpreting Construction Contracts: Fundamental Principles for Contractors, Project Managers, and Contract Administrators, by H. Randolph Thomas, Ph.D., P.E.; and Ralph D. Ellis, Ph.D., P.E. (ASCE Press, 2008). Discusses the most troublesome contract clauses and presents rules to construe them so as to avoid disputes that must be resolved in court. Managing Gigaprojects: Advice from Those Who’ve Been There, Done That, edited by Patricia D. Galloway, Ph.D., P.E.; Kris R. Nielsen, Ph.D., J.D.; and Jack L. Dignum. (ASCE Press, 2012). A stellar group of financial, legal, and construction professionals share lessons learned and best practices developed from working on the world’s biggest infrastructure construction projects. Preparing for Design-Build Projects: A Primer for Owners, Engineers, and Contractors, by Douglas D. Gransberg, P.E.; James E. Koch, P.E.; and Keith R. Molenaar, P.E. (ASCE Press, 2006). Covers the basics of developing design-build requests for qualification and requests for proposals. Productivity Improvement for Construction and Engineering: Implementing Programs that Save Money and Time, by J.K. Yates, Ph.D. (ASCE Press, 2014). Focuses on investigation and analysis techniques that engineering and construction firms can use to support the implementation of productivity improvement programs. Project Administration for Design-Build Contracts: A Primer for Owners, Engineers, and Contractors, by James E. Koch, Ph.D., P.E.; Douglas D. Gransberg, Ph.D., P.E.; and Keith R. Molenaar, Ph.D. (ASCE Press, 2010). Explains the basics of administering a design-build project after the contract has been awarded. Public-Private Partnerships: Case Studies on Infrastructure Development, by Sidney M. Levy. (ASCE Press, 2011). Demystifies public-private partnerships as an innovative solution to the challenges of designing, financing, building, and operating major infrastructure projects.
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Construction Contract Claims, Changes, and Dispute Resolution Third Edition
EDITED
BY
PAUL LEVIN, PSP
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Library of Congress Cataloging-in-Publication Data Names: Levin, Paul, 1946- editor. Title: Construction contract claims, changes, and dispute resolution/edited by Paul Levin; forword by Islam H. El-Adaway, PH.D. Description: Third edition.|Reston, Virginia: American Society of Civil Engineers, 2016. Identifiers: LCCN 2015039204 (print)|LCCN 2015040371 (ebook)|ISBN 9780784414293 (print : alk. paper)|ISBN 9780784479698 (ebook)|ISBN 9780784479704 (epub)|ISBN 9780784479698 (pdf) Subjects: LCSH: Construction contracts—United States. | Dispute resolution (Law)—United States. Classification: LCC KF902.C65 2016 (print)|LCC KF902 (ebook)|DDC 692/.8—dc23 LC record available at http://lccn.loc.gov/2015039204 Published by American Society of Civil Engineers 1801 Alexander Bell Drive Reston, Virginia 20191-4382 www.asce.org/bookstore | ascelibrary.org Any statements expressed in these materials are those of the individual authors and do not necessarily represent the views of ASCE, which takes no responsibility for any statement made herein. No reference made in this publication to any specific method, product, process, or service constitutes or implies an endorsement, recommendation, or warranty thereof by ASCE. The materials are for general information only and do not represent a standard of ASCE, nor are they intended as a reference in purchase specifications, contracts, regulations, statutes, or any other legal document. ASCE makes no representation or warranty of any kind, whether express or implied, concerning the accuracy, completeness, suitability, or utility of any information, apparatus, product, or process discussed in this publication, and assumes no liability therefor. The information contained in these materials should not be used without first securing competent advice with respect to its suitability for any general or specific application. Anyone utilizing such information assumes all liability arising from such use, including but not limited to infringement of any patent or patents. ASCE and American Society of Civil Engineers—Registered in U.S. Patent and Trademark Office. Photocopies and permissions. Permission to photocopy or reproduce material from ASCE publications can be requested by sending an e-mail to
[email protected] or by locating a title in the ASCE Library (http://ascelibrary.org) and using the “Permissions” link. Errata: Errata, if any, can be found at http://dx.doi.org/10.1061/9780784414293 Copyright © 2016 by the American Society of Civil Engineers. All Rights Reserved. ISBN 978-0-7844-1429-3 (print) ISBN 978-0-7844-7969-8 (PDF) ISBN 978-0-7844-7970-4 (EPUB) Manufactured in the United States of America. 23 22 21 20 19 18 17 16
1 2 3 4 5
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contents
Foreword xiii Preface xv Acknowledgment xvii Contributors xix Chapter 1.
Introduction ............................................................................1 Paul Levin 1.1.
A More Rounded Approach to Construction Disputes 1 1.2. Construction Claims—Background, Outlook, and Approach 1 1.3. Definition of a Claim 3 1.4. The Purpose of This Book 3 1.5. Public Contracts 4 1.6. Private Contracts 4 1.7. Beyond the Contract—Principles of Construction Law 5 1.8. Policies and Procedures for Administration 6 1.9. New Format for the Third Edition 8 1.10. Review of Chapters 8 1.11. Owners, Designers, and Their Representatives 11 Endnotes 11
Chapter 2.
Claim Identification and Notification.............................. 13 Joseph A. McManus Jr. and Karlee Starr Blank 2.1. 2.2. 2.3. 2.4.
Definition of a Claim 13 Claims Consciousness 14 Two Elements of Every Claim 14 Identification and Entitlement 15 v
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
vi
Contents
2.5. 2.6. 2.7. 2.8. 2.9.
The Quantum Element of a Claim 21 Notification of Claims and Change Orders 22 Time Requirements 23 Late Notice 26 Notification—Factors Involving Contract Owners 27 2.10. Federal Contracts and the Contract Disputes Act 28 2.11. Appeal of a BCA or COFC Decision to the United States Court of Appeals for the Federal Circuit 39 2.12. Alternative Dispute Resolution and Federal Construction Contracts 40 2.13. Conclusion 40 Appendix 2A: EJCDC C-700 Standard General Conditions of the Construction Contract, Articles 11 and 12 41 Appendix 2B: Appealing the CO’s Final Decision to the Agency Board of Contract Appeals 48 Appendix 2C: Appealing the CO’s Final Decision to the Court of Federal Claims 51 Appendix 2D: Appealing a BCA Decision or Court of Federal Claims Judgment to the Federal Circuit 52 Appendix 2E: Alternative Dispute Resolution in the Boards of Contract Appeals, Court of Federal Claims, and Federal Circuit Court 54 Endnotes 61 Chapter 3.
Differing Site Conditions .................................................. 69 Marilyn Klinger 3.1. 3.2. 3.3. 3.4. 3.5. 3.6. 3.7. 3.8.
Introduction 69 Differing Site Conditions Clauses 70 Two Types of Differing Site Conditions 71 Type One Conditions—Examples 73 Type Two Conditions—Examples 76 Forces of Nature 77 Investigation of the Site and the Plans and Specifications 77 Summary and Checklist 83
Construction Contract Claims, Changes, and Dispute Resolution
Contents
vii
Appendix 3A: Site Investigation Report Form 85 Endnotes 87
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Chapter 4.
Interpretation and Requirements of Contract Specifications ........................................................................ 91 Brian W. Bennett and Jonathan M. Blocker 4.1. Introduction 91 4.2. Rules of Contract Interpretation 92 4.3. Defective Specifications 98 4.4. Duty to Seek Clarification 103 4.5. Duty to Inform 106 4.6. Duty to Proceed 107 4.7. Duty to Inspect 108 4.8. Conclusion 110 Endnotes 111
Chapter 5.
Construction Project Delays and Time Extensions .... 117 Thomas D. Fertitta, Anthony L. Nedinsky, and Jeffrey G. Gilmore 5.1. 5.2. 5.3. 5.4. 5.5. 5.6. 5.7. 5.8. 5.9. 5.10. 5.11. 5.12. 5.13. 5.14. 5.15. 5.16. 5.17.
Introduction 117 The Critical Path and Float 117 Types of Delay 118 When Does a Delay Occur? 121 Causes of Delay 121 Suspension of Work 124 Disruption, Inefficiencies, Loss of Productivity, and Loss of Learning Curve 124 Delays Due to Defective Work Leading to Rework Delays 125 Typical Owner-Caused Delay 126 Typical Contractor-Caused Delay 126 Delays on Multiprime Contracts 127 Concurrent Delay 127 Pacing Delays 129 Delay Documentation, Measurement, and Proof 129 Liquidated Damages 132 No Damages for Delay Clause 133 Remedies for Project Delay 134
Construction Contract Claims, Changes, and Dispute Resolution
viii
Contents
5.18. Conclusion 134 Endnotes 135
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Chapter 6.
Acceleration and Mitigation of Project Delays .......... 139 Christopher M. Burke and Michael J. Harris 6.1. 6.2. 6.3. 6.4.
Introduction 139 Mitigation 139 Acceleration 142 Proving Delays, Time Extensions, and Acceleration 146 6.5. Recovery Schedules and Schedule Acceleration 147 6.6. Acceleration Costs 148 6.7. Conclusion 149 Appendix 6A: Overtime Statistics 150 Endnotes 152
Chapter 7.
Records and Documentation .......................................... 153 Robert M. Freas and W. Wesley Grover III 7.1. 7.2. 7.3. 7.4. 7.5. 7.6. 7.7. 7.8. 7.9. 7.10.
Introduction 153 Types of Records 154 Bid, Estimate, and Budgets 154 Time Cards 155 Job Cost Accounting System 155 Production Reporting 157 Material and Delivery Receipts 158 Schedules and Progress Reporting 158 Cash Flows 159 Correspondence, Transmittal, and Submittal Logs 159 7.11. Daily Reports 160 7.12. Photographs and Videos 162 7.13. Special Forms for Change Orders and Claims 163 7.14. Periodic Reviews 165 7.15. E-Mail and Social Media 166 7.16. Document Management 167 7.17. Conclusion 167 Appendix 7A: Daily Production Report Form (Sample Form) 168
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contents
ix
Appendix 7B: Job Report Summary of Effect of Disruptions and Interference (Sample Form) 169 Appendix 7C: Change Order Initiation Form 170 Appendix 7D: Change Order Status Report (Sample Form) 172 Appendix 7E: Change Order Status Report Cover Letter 173 Endnotes 174 Chapter 8.
Use of Project Schedules and the Critical Path Method in Claims .................................................... 175 John C. Livengood 8.1. 8.2. 8.3. 8.4. 8.5. 8.6. 8.7. 8.8. 8.9.
Introduction 175 Use of CPM in Claims Analysis 179 Pitfalls to Avoid in CPM Claims Analysis 180 Development of the Baseline 182 Float 184 Float—Early Completion 184 Concurrent Delay 186 Three Types of Acceleration 188 Schedule Analysis Techniques for Claims Support 189 8.10. Contemporaneous Understanding of Criticality 194 8.11. Comparison Chart of CPM Analysis Methods 195 8.12. Other Methods 195 8.13. Expert Schedule Analysis 195 8.14. Conclusion 197 Endnotes 197
Chapter 9.
Impact on Labor Productivity from Claims and Change Orders ............................................ 201 William Ibbs and Paul L. Stynchcomb 9.1. 9.2. 9.3. 9.4. 9.5.
Introduction 201 Productivity’s Nature and Importance Change and Productivity Loss 204 Loss of Productivity Change Requests and Claims 211 Ways to Improve Productivity 232
Construction Contract Claims, Changes, and Dispute Resolution
203
x
Contents
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
9.6. Conclusion 233 References 233 Endnotes 238 Chapter 10. Subcontractors and Suppliers ........................................ 243 Christopher M. Anzidei 10.1. 10.2. 10.3. 10.4. 10.5. 10.6.
Introduction 243 General Contractor’s Duty of Performance 244 Contractor–Subcontractor Relationship 244 Subcontractor–Owner Claims 245 Suppliers 245 Documentation of General Contractor/ Subcontractor/Supplier Transactions: Documenting Delays 248 10.7. Other Contractor–Subcontractor Claim Issues 249 10.8. Subcontractor Licensing 254 10.9. Subcontractor-Specific Claims Publications 254 10.10. ConsensusDocs Standard Form Subcontracts 254 10.11. Conclusion 255 Endnotes 256
Chapter 11. Pricing Construction Claims and Change Orders ...... 259 Donald Harrington, R. Brent McSwain, Rex Snyder, and James L. Giles 11.1. 11.2. 11.3. 11.4.
Introduction 259 Forward Pricing 261 Post Pricing 266 The Proposal—Request for Equitable Adjustment 272 11.5. Impact and Inefficiency Costs 278 11.6. Material Costs 283 11.7. Equipment Costs 288 11.8. Overhead and Profit 296 11.9. Total Cost 304 11.10. Other Elements of Claim Pricing 306 11.11. Conclusion 314 Endnotes 314
Construction Contract Claims, Changes, and Dispute Resolution
Contents
xi
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Chapter 12. Negotiations ........................................................................ 321 Kathleen O. Barnes 12.1. Introduction 321 12.2. The Need for Contract Negotiation 322 12.3. Determining Your Bottom Line 324 12.4. Preparation for Negotiations 333 12.5. Other Considerations 337 12.6. Bargaining-Table Tactics 339 12.7. Memorializing the Deal 340 12.8. Conclusion 343 Endnotes 343 Chapter 13. Dispute Avoidance and Alternative Dispute Resolution............................................................................ 347 Adam K. Bult, David W. Halligan, Jonathan Pray, and James G. Zack Jr. 13.1. 13.2. 13.3. 13.4. 13.5. 13.6.
Introduction 347 Predispute ADR Methods 348 Initial Claims and Dispute Phase 355 Alternatives during Litigation 376 Trial by Reference (Referee) 379 Administrative Dispute Resolution Act and the Federal ADR Experience 379 13.7. Formal Administrative and Judicial Dispute Resolution 380 13.8. Conclusion 382 Endnotes 383
Chapter 14. Termination of Construction Contracts ........................ 387 Dorothy E. Terrell and Nicholas J. Surace 14.1. Introduction 387 14.2. Termination for Default 387 14.3. Termination for Convenience 391 14.4. Termination by Contractor 394 14.5. Private Clauses 394 14.6. Conclusion 396 Endnotes 396
Construction Contract Claims, Changes, and Dispute Resolution
xii
Contents
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Chapter 15. Bonds and Liens ................................................................ 399 Rebecca Glos 15.1. Overview 399 15.2. Construction Bonds 400 15.3. Liens and Stop Notices 403 Endnotes 408 Chapter 16. Insurance Issues: Construction Claims of a Different Nature ................................................................ 411 Scott C. Turner 16.1. Introduction 411 16.2. Greatest Potential Trap 412 16.3. Common Construction-Related Insurance Policies 412 16.4. Insurance Basics 422 16.5. Conclusion 429 Endnotes 430 Chapter 17. Alternate Project Delivery: Claims in Design-Build, Guaranteed Maximum Price, and Other Delivery Methods .............................................................................. 431 Richard E. Burnham and Mark F. Nagata 17.1. Introduction to Changes in the Context of Alternate Project Delivery Methods 431 17.2. Changes in the Context of a GMP Contract 432 17.3. Changes in the Context of a Design-Build Contract 449 17.4. Conclusion 456 Endnotes 457 Case Law Index 459 Subject Index 465
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Foreword
The construction industry has always been an indicator of the health of national and global economies. Today’s construction industry is characterized by complex and large-scale construction projects; involvement of diverse, and potentially multicultural, associated stakeholders; poorly prepared and/or executed contract documents; tight financial constraints; unfair allocation of risks; and communication problems. Thus, changes after the work starts are not unusual and are sometimes the standard. This environment provides fertile ground for development of construction claims. If not amicably settled, construction claims escalate to conflicts and disputes. In all cases, construction claims, conflicts, and disputes negatively affect the construction industry, its people, and the world economy. For these reasons, providing the construction industry with an easy-to-use resource that collectively addresses the aforementioned challenges is crucial. This third edition of Construction Contract Claims, Changes, and Dispute Resolution fills this knowledge gap. Contributing experts with a diverse skillset in construction law, construction consulting, and academia provide the reader with best practices for identification, notification, documentation, delay and cost analysis, pricing, negotiation, resolution of claims, and changes under construction contracts. In doing so, the book addresses conventional and innovative project delivery methods and covers the broad range of stakeholders, including owners, designers, contractors, subcontractors, suppliers, manufacturers, and surety. Accordingly, this book provides a comprehensive guide that should help alleviate and mitigate matters of paramount importance to the construction industry. As an academician, researcher, and industry consultant, I have used and benefited from the previous two editions of Paul Levin’s book. This third edition also does an outstanding job of addressing the new, evolving characteristics of contracting in the 21st century as related to xiii
Construction Contract Claims, Changes, and Dispute Resolution
xiv
Foreword
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
claims, changes, and dispute resolution. Accordingly, I invite you to read this book trusting that you will agree with me on its value.
Islam H. El-Adaway, Ph.D., F.ICE, M.ASCE Associate Professor of Civil Engineering Construction Engineering and Management Program Coordinator The University of Tennessee–Knoxville
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Preface
This work is intended to serve as a handbook for those who are engaged in construction contracting and involved with or in a position to influence the prevention, preparation, management, and resolution of construction claims and change orders. Shaped by the outcomes of federal and public construction cases, the general guidelines and legal principles covered in this book should be of value and apply to those involved in private-sector commercial and public-private partnership (PPP) construction projects. Interpretations of the law contained in this handbook are solely those of the writers and are not intended to serve as legal advice. Originally published in 1978 and last updated in 1998, this book merges principles of construction law with practical advice to aid those involved in the construction claims process. Originally directed to contractors, many engineers, owners, and construction managers also purchased the publication as a project guidebook, reference, and training manual. In the past 35 years, the principles of construction law have changed very little. The major focus is for all parties involved—engineers, architects, owners, and contractors—to be aware of these principles, strive to reduce or eliminate factors that give rise to disputes, and establish procedures for expeditious and fair resolution of inevitable claims. As in the first two editions, this revamped third edition of Construction Contract Claims, Changes, and Dispute Resolution attempts to continue the tradition of straightforward, simple approaches. For more information on claims, documentation tools, recent cases, and links to construction/claims-related resources, please visit the ConstructionProNet.com website.
xv
Construction Contract Claims, Changes, and Dispute Resolution
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Acknowledgment
I am grateful to the individual authors who set aside time from their busy law and consulting practices to provide the benefit of their expertise in their respective chapters. As our society grows in complexity, so do the intricacies of our day-to-day work lives, which call for more specialized knowledge to solve specific problems. For that reason, in this edition I chose to rely on subject matter experts to provide the reader with knowledgeable, authoritative, and up-to-date content. In addition, I am grateful to my employer and my family, who allowed me to spend the many hours needed to produce the book and prepare the manuscript for submission to ASCE Press. Paul Levin, PSP
xvii
Construction Contract Claims, Changes, and Dispute Resolution
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contributors
Chapter 1—Introduction Paul Levin, PSP, has more than 25 years of contract administration, project management, scheduling, and claims consulting experience involving a wide variety of projects, including nuclear and hydroelectric power plants, transit systems, railroads, convention centers, warehouses, recycling plants, office buildings, and aquariums. He has devoted an equal amount of time to writing and publishing editorial content on construction topics, including claims, project controls, green building, scheduling, building information modeling (BIM), and most recently the use of drones in construction.
Chapter 2—Claim Identification and Notification Joseph A. McManus Jr. is a partner in the construction law firm of McManus & Felsen LLP. He is a graduate of the College of the Holy Cross and obtained his JD from Duke University School of Law in 1972. He is a past president of the American College of Construction Lawyers, a fellowship of the 170 leading construction lawyers. He frequently serves as an arbitrator on local, national, and international cases. He is a member of the Large Complex Case Panel of Arbitrators, a mediator (American Arbitration Association), and a member of the Chartered Institute of Arbitrators. He has appeared as an expert witness in cases involving construction documents, specifically American Institute of Architects documents, in the United States and the Caribbean. xix
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
xx
Contributors
He advises clients on construction and commercial issues and disputes. He gained this experience in construction and public-contracts law as a lawyer in the U.S. Air Force Judge Advocate General’s Corps, as general counsel to Clark Enterprises, Inc., and as a member of his own firm. He has represented many public owners, including the Metropolitan Washington Airports Authority, the District of Columbia Council, the government of Barbados, and the government of Greece. Karlee Starr Blank is an associate with the construction law firm of McManus & Felsen LLP. She graduated cum laude from Columbia University with a Bachelor of Arts in 2012, and she obtained her JD from Duke University School of Law in 2015. Prior to law school, she worked in India, Turkey, and the United States as an instructor and program development manager for In-V-Ent-Ed, a global entrepreneurship education program. In 2009, she received a grant to design and bring solar heating and lighting technology to a remote school in Qinghai Province, China. At Duke Law School, she was named in 2013 the Inaugural Jeroll R. Silverberg Scholar. In recognition of her pro bono work, Ms. Blank was named the recipient of the 2015 Duke Law Clinics Advocacy Award. In her third year of study, she completed a Capstone Project titled American Law Firms: How to Mitigate the Risk of Legal Malpractice Liability When Collaborating with Overseas Legal Counsel. She previously worked as a law clerk at McManus & Felsen LLP, assisting the firm’s attorneys with client matters and collaborating on publications such as the 2014, 2015, and 2016 revisions to the “When and How to File a Federal Contract Claim” chapter of the Aspen Construction Law Handbook.
Chapter 3—Differing Site Conditions Marilyn Klinger is located in the Los Angeles office of Sedgwick LLP and is involved in all aspects of construction law on state and national levels. She is 2014Chambers-ranked in construction law. She represents the full spectrum of the construction industry, including owners, contractors, subcontractors, and sureties. Her practice includes time-related claims and litigation (delay and impact), legal advice and counsel regarding the contracting process (bidding and
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contributors
xxi
contract disputes and performance bond claims), payment enforcement and defense (payment bonds, mechanic’s liens, and stop payment notices), administrative and scope claims and litigation (differing site conditions, change and extra work orders and inadequate plans and specifications, and subcontractor substitutions), and counseling and transactional services to the construction industry (general advice and counsel, including contract preparation, evaluation, and negotiation).
Chapter 4—Interpretation and Requirements of Contract Specifications Brian W. Bennett is the founding partner and owner of Bennett Legal Group, P.A., in Orlando, Florida. He is Florida Bar Board Certified in Construction Law and has represented various participants in the construction process, including owners, general contractors, design professionals, and major subcontractors. He has several years of practical experience in civil engineering and general construction prior to attending law school. His civil engineering experience includes the design of sanitary sewer, water distribution, and storm drainage systems for various residential and commercial developments. His general construction experience involved project management of commercial projects including a $10 million dormitory for the College of Charleston and a $7 million alumni center for the University of North Carolina at Chapel Hill.
Jonathan M. Blocker is an associate with the firm of Christian & Small LLP, in Birmingham, Alabama, where he practices professional liability defense, construction, and aviation law. Prior to joining the firm, he practiced construction law in Florida. Mr. Blocker also served three years as an assistant state attorney for the Office of the State Attorney, Ninth Judicial Circuit of Florida. Working in both Orange and Osceola counties, he prosecuted hundreds of criminal cases and more than 25 jury trials to verdict for crimes of violence, burglary, and drug trafficking. He is licensed to practice law in Alabama and Florida.
Construction Contract Claims, Changes, and Dispute Resolution
xxii
Contributors
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Chapter 5—Construction Project Delays and Time Extensions Thomas D. Fertitta, PSP, founded TDF, LLC, in April 2001 as a construction consulting services company. Since 1981, his construction experience has included project management, cost estimating, and fieldwork coordination of shell and tenant improvements on various facilities such as high-rise office buildings, warehouses, and research and development buildings. He has held leadership positions with a general contractor, a real estate developer, and an international professional services firm. He has prepared construction claims and schedules for owners and contractors on private and municipal projects such as schools, office buildings, cogeneration plants, industrial facilities, condominiums, wastewater treatment plants, prisons, and courthouses. He has performed schedule analyses, demonstrating delay, disruption, acceleration and performing damage and loss of productivity calculations, as-built construction schedules, issue and entitlement identification and analysis, and document control and organization. He has provided expert witness services for negotiation, mediation, arbitration, and state and federal court regarding scheduling matters. Anthony L. Nedinsky, PSP, has amassed experience over his career in several roles, including project management, cost estimating, scheduling, field coordination and leadership, negotiation with owners, and community outreach for heavy civil projects. His experience includes constructing several types of bridges (concrete girders, steel girders and box beams, integral and semi-integral abutments, and simple spans), foundations (H-pile, drilled shaft from micropiles up to 72-inch diameter caissons), post and panel retaining walls (with and without tiebacks), mechanically stabilized earth (MSE) retaining walls, crib walls, combination walls, soundwalls (concrete post, steel post, and lightweight soundwall), and support of excavation (chance anchor, pile and lagging, pile and lagging with tiebacks, pile and lagging with rakers, and tiebacks with shotcrete). His experience also includes earthwork and roadway construction, reinforced concrete pavement, large concrete underground structure construction including architectural concrete and finishing, storm drainage, water line (up to 54-in.
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contributors
xxiii
diameter), sanitary sewer (gravity and force main), gas line, ductbanks, and overhead electrical lines. He also has performed tenant fit-out work, including HVAC, electrical, plumbing fire protection, and interior finishes. He most recently worked in the project engineer role in a large segment of a $1.5 billion design-build project to construct new generalpurpose lanes, toll lanes, and multiple bridges. He has taken leadership roles in preparation of schedule analyses and claims for delay, disruption, and acceleration as well as assisting contractors and owners with specific scheduling assignments to develop, enhance, and update baseline schedules. Jeffrey G. Gilmore is the chairperson of Akerman's Construction Practice. His practice emphasizes domestic and international construction law involving a broad range of public and private matters, including engineering-procurement-construction (EPC)/designbuild projects, health care, multifamily housing, power generation, and petrochemical and infrastructure projects (transportation, water, and public safety). In addition, he has been recognized for his experience in construction matters in Chambers USA; recommended in the Southeast in the Legal 500 for construction; noted as one of the Best Lawyers in America for construction law; and listed in the Virginia Business Legal Elite in the construction category.
Chapter 6—Acceleration and Mitigation of Project Delays Christopher M. Burke is a partner with Varela, Lee, Metz & Guarino, LLP, a law firm representing clients spanning the breadth of the construction and engineering industry, including owners, developers, contractors, subcontractors, design professionals, sureties, and public agencies. He has spent his entire legal career focusing on the construction industry and has litigated dozens of disputes in the public and private sectors, both in the United States and abroad. He is well versed in the crucial elements of construction disputes, including schedule analysis, lost productivity studies, and issues of design interpretation. He is particularly knowledgeable regarding claim pricing and
Construction Contract Claims, Changes, and Dispute Resolution
xxiv
Contributors
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
damages. He graduated cum laude from Yale University and later from the University of Virginia School of Law, where he served as a Dillard Fellow Legal Research and Writing Instructor.
Michael J. Harris is a vice president at Warner Construction Consultants, Inc., and is the leader of Warner’s Disputes Resolution Group. He is a licensed civil engineer and attorney with 35 years of construction experience, including 20 years as an expert witness specializing in construction delay, acceleration, disruption, loss of efficiency, and termination disputes. He is skilled in construction claims analysis and litigation support, having served as a testifying expert in mediations, arbitrations, and litigation. His expertise includes analysis of impacts caused by various issues, including loss of production, weather, design errors and omissions, contractor errors, change orders, manpower shortages, differing site conditions, management issues, and material shortages. His deep understanding of the construction process is founded in his background as an inspector, scheduler, construction engineer, project manager, and scheduling/estimating department manager, where he prepared detailed schedules, master schedules, and recovery schedules and reviewed technical submittals, performed constructability reviews, developed cost studies, and managed the construction of large projects.
Chapter 7—Records and Documentation Robert M. Freas advises clients on many topics, including risk management, project controls, change management, project scheduling, process improvement, change order negotiations, dispute avoidance, and the preparation or defense of construction claims. He has participated in the preparation and presentation of several major construction and contract claims and disputes. His experience with construction disputes includes the development, analysis, and defense of construction claims related to delays, inefficiencies, and cost overruns. Specifically, he has prepared as-planned schedules, updates, and time
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contributors
xxv
impact analyses; prepared and analyzed as-built schedules; and prepared delay- and performance-related analyses, productivity-impact and acceleration analyses, and cost and damages claims. He has provided risk analysis services to large construction owners and contractors, including contract risk assessments, probabilistic scheduling, Monte Carlo simulations, and schedule and cost assessments. He also has provided projectmanagement oversight and construction-management services, developed project control systems, and prepared project status reviews. W. Wesley Grover III, P.E., MBA, has more than 29 years of experience in analyzing and preparing claims relating to construction matters (e.g., identification and quantification of impact events; effect of change orders, design changes, and out-of-sequence work; and impact of quantity changes and unit price changes), government contracts, business interruption, lost profits, valuation and environmental matters, and management consulting services. He also has testified as an expert witness concerning economic damages related to construction, operating and maintenance costs, business interruption, business valuation, lost profits, repair and restoration costs, betterment, employment wage and discrimination costs, and trade-secret-related matters. He has also presented analyses to various parties including the U.S. Department of Justice, the U.S. Attorney’s Office, Office of the Inspector General, and States Attorneys General.
Chapter 8—Use of Project Schedules and the Critical Path Method in Claims John C. Livengood, AIA, Esq., FAACE, is a managing director with Navigant’s Global Construction Practice and has 40 years of experience in construction, design, delay analysis, and litigation support. His areas of expertise include construction, construction management, government contracts, litigation support, mediation, arbitration, construction litigation, cost analysis, change order analysis, delay and disruption claims, acceleration claims, and loss of productivity claims.
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
xxvi
Contributors
As an expert witness, he has testified in court and arbitration proceedings throughout the world on delay and productivity issues and damages and causation issues. He is active in several professional organizations, including AACE International (AACE), the American Bar Association, Construction Management Association of America, and the American Society of Civil Engineers. He is President of AACE in 2016–2017. He has published numerous articles on construction claims and delay analysis and speaks regularly on these topics. He also is one of the principal authors of AACE’s “Recommended Practice on Forensic Schedule Analysis” (RP29R-03, 2011). He holds a Bachelor of Architecture from Syracuse University and a Juris Doctor from Catholic University of America.
Chapter 9—Impact on Labor Productivity from Claims and Change Orders William Ibbs, Ph.D., is professor and group leader of the construction management program in the civil engineering department at the University of California, Berkeley (U.C. Berkeley). He teaches both undergraduate and graduate courses in construction management, including scheduling, labor productivity analysis, cost management and accounting, and project management. He is a leading thinker, active researcher, and writer on construction management subjects. In addition to his academic career, Professor Ibbs is a very active consultant. He has served as an expert witness and project neutral, testifying in federal and state courts and in international arbitration. His work includes the impact project change has on labor productivity (both design and construction labor), schedule, and cost. He is probably best known for his work on cumulative impact claims, but he also has testified on matters involving professional standards of care and disputes involving cumulative impact, schedule delay, construction accounting, false claims, and loss of economic value. He has worked on some of the biggest, most complex projects in the world, including Boston’s Big Dig, reconstruction of the Panama Canal, refineries, chemical plants, hospitals, process plants, transit systems, and
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contributors
xxvii
nuclear and conventionally fueled power plants. Clients include contractors, construction management (CM) firms, designers, and owner organizations throughout the United States, Africa, Asia, Europe, the Middle East, and South America. Prior to his academic career, he worked in the private sector for design, owner, and contractor organizations. He earned his Bachelor of Science and Master of Science degrees from Carnegie Mellon University and a Doctor of Philosophy degree from U.C. Berkeley, all in civil engineering with a construction management emphasis. He has minors in accounting and finance. Paul L. Stynchcomb, CCM, PSP, CFCC, is a consultant with the Ibbs Consulting Group. Formerly, he served as a senior managing director in the Forensic and Litigation Consulting practice of FTI Consulting. He has worked in the construction industry since 1984 as an expert in critical path method (CPM) scheduling, construction management, contract administration, and labor productivity. Prior to 1984, he held construction management positions in several major U.S. construction firms. He has been qualified as an expert in CPM scheduling, construction management, contract and subcontract administration, delay and cost impact analysis, and loss of labor productivity in federal and state courts, boards of contract appeals, and the Court of Federal Claims and before tribunals of the American Arbitration Association and International Court of Arbitration (ICC).
Chapter 10—Subcontractors and Suppliers Christopher M. Anzidei, Esq., is an attorney with extensive experience in drafting construction contracts and resolving commercial disputes. Mr. Anzidei is currently an in-house attorney for the Catholic Archdiocese of Washington, DC, where he handles primarily construction and real estate matters, and he was formerly the principal of a boutique law firm that specialized in construction, surety, and government contracts law. Mr. Anzidei received a Bachelor of Arts, with high honors, from Rutgers University and a Juris Doctor from Georgetown University Law Center.
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
xxviii Contributors
Prior to opening his own firm, he clerked for the Honorable Robert J. Yock, United States Court of Federal Claims, and later rose to partner at a large, national construction law firm. He is a frequent lecturer and author for many national trade organizations, and he is an adjunct professor at Georgetown Law.
Chapter 11—Pricing Construction Claims and Change Orders Donald Harrington is vice president of Sage Consulting Group, a national consulting firm based in Denver, Colorado, specializing in the analysis and preparation of construction claims and contract surety defaults. He has more than 30 years of experience in construction claims with expertise including schedule analysis, cost estimating, damage calculations and allocations, impact and inefficiency analyses, and means and methods reviews and contract interpretation. He has testified in various state and federal courts throughout the United States and in front of numerous arbitration panels and dispute review boards. He is a Certified Professional Constructor and a member of the American Institute of Constructors. He is a Certified Construction Supervisor in several Colorado jurisdictions. He received a Bachelor of Science in Civil Engineering from the University of Colorado. R. Brent McSwain is a senior consultant at Sage Consulting Group. He has worked as an owner representative, responsible for developing multimilliondollar acute-care hospital facilities, offices, warehouses, correctional and probation facilities, and recreational facilities and for administering disaster recovery services. He also was a project manager for a major general contractor responsible for executing multimillion-dollar projects, including the National Water Quality Laboratory for the federal government, a regional correctional facility for a county agency, a precast parking garage for a hotel, and an office building, and he managed disaster recovery work. He has been with Sage since 2003. He has extensive experience in preparing and
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contributors
xxix
defending claims that involve schedule delays, disruptions, and damages for correctional facilities, water treatment plants, office buildings, hotels, luxury condominiums, recreational facilities, and schools. He has experience in litigation support, deposition, and trial testimony. He received his Bachelor of Science degree in Industrial-Construction Management from Colorado State University in 1981 and has worked in the construction business since 1977.
Rex Snyder is a senior consultant at Sage Consulting Group. He has more than 34 years of constructionrelated experience, including eight years of claimsrelated experience. He has performed hands-on field work, field/project engineering, project scheduling, project management, project executive, and claims analysis on a wide variety of construction projects. These projects include both public and private projects involving resort, commercial, educational, bridge, airport, and water/wastewater facilities. He has managed projects valued at up to $90 million. Drawing upon his experience in construction management, cost control, and scheduling, he provides cost analysis and critical path method scheduling analysis and implementation.
James L. Giles (deceased) is a senior consultant at Sage Consulting Group. Prior to his employment with Sage, he worked in both field installation and project management and control of electrical/mechanical projects ranging from custom residential to industrial projects. He has been responsible for the cost control and labor management of schools, manufacturing facilities, hospitals, wastewater treatment, and government projects. In his 35 years in the construction industry, he also spent considerable time working with estimating, cost accounting, and scheduling software programs. His responsibilities at Sage include the preparation and defense of construction claims caused by delays, disruptions, added work, and/or acceleration through the analysis of estimates, schedules, and accounting information.
Construction Contract Claims, Changes, and Dispute Resolution
xxx
Contributors
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Chapter 12—Negotiations Kathleen O. Barnes is a senior partner with the law firm of Watt, Tieder, Hoffar & Fitzgerald, LLP. Since 1989, she has focused her legal practice on construction and complex commercial litigation, the preparation and negotiation of project contract documents, and the evaluation and preparation of claims. She has an active government contracts practice and advises contractors, architects, engineers, and owners on issues involving government contract administration and compliance. She litigates all manner of construction, commercial, and government contract matters in federal and state courts, boards of contract appeals, and in arbitration throughout the United States. In conjunction with her practice, she lectures on government contract, construction, and surety issues, and has written numerous articles on these topics. She was elected to the American College of Construction Lawyers in 2011 and has been listed in Best Lawyers in America, construction law category, since 2008.
Chapter 13—Dispute Avoidance and Alternative Dispute Resolution Adam K. Bult is shareholder at Brownstein Hyatt Farber Schreck. From hundred-million-dollar construction disputes to preliminary injunction hearings, he has spent his career litigating complex business and construction disputes in state and federal courts throughout Nevada. His complex business litigation practice includes everything from multiday evidentiary hearings and arbitrations to intricate preliminary injunction hearings and an extensive and decisive motion practice. In his construction litigation practice, he works with local companies and global entities in the industry, including design and architectural experts, construction management and claims experts, leading construction dispute resolution attorneys and arbitrators, and international construction law firms. He is accomplished at handling all aspects of construction and design litigation claims, whether they involve local contractors, public entities, or global companies.
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contributors
xxxi
David W. Halligan, Ph.D., P.E., has 25 years of experience in construction management, loss of productivity, schedule delay, project controls, and dispute resolution on a wide variety of projects. He has worked on power plants and industrial process facilities, tunnels, pipelines, high-rise and residential projects, transportation projects, military and high-tech facilities, water and wastewater treatment plants, correctional facilities, hospitals, educational facilities, and dams. He has supported clients in resolving disputes involving loss of productivity and schedule delays through negotiations, mediations, dispute review boards, arbitration, and in trial. He has also provided clients assistance in matters related to schedule and cost control, cost audits, management procedures compliance audits, and change order management. He is a published author on loss of productivity in construction and has been a guest lecturer at the Construction Engineering and Management Graduate Program at the University of California, Berkeley. Jonathan Pray’s practice focuses on advising clients involved in real estate and construction disputes. He has represented clients in all aspects of the development and construction industries, including commercial and residential developers and landlords, public agencies, design and engineering firms, contractors, subcontractors, suppliers, lenders, sureties, and municipalities. He has litigated construction and real estate disputes in both state and federal courts and in private arbitrations He also regularly advises clients on the drafting and negotiation of construction contracts for public and private projects and provides advice to project participants over the course of construction—all with the goal of helping his clients resolve disputes and avoid litigation altogether. James G. Zack Jr., CCM, CFCC, FAACE, FRICS, PMP, is the executive director of Navigant Construction Forum. The Forum strives to be the construction industry’s resource for thought leadership and best practices on avoidance and resolution of construction project disputes globally. Formerly, he was the executive director of Corporate Claims Management for the Fluor Corporation, one of the world’s largest publicly owned engineering, procurement, construction,
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
xxxii
Contributors
and maintenance contractors. He was previously vice president of PinnacleOne, executive director of the PinnacleOne Institute, and a senior construction claims consultant for CH2M HILL, Inc. For more than 40 years, he has worked on both private and public projects. In the construction claims field, he is a recognized and published expert in mitigation, analysis, and resolution or defense of construction claims and disputes.
Chapter 14—Termination of Construction Contracts Dorothy E. Terrell is counsel to the law firm of Smith Pachter McWhorter PLC, located in Tysons Corner, Virginia. Her practice focuses on the construction and government contracts industries and all phases of project development and construction, including contract formation, project management, claim preparation, defense and negotiation, litigation, and the successful resolution of disputes through various forms of alternative dispute resolution. In the construction claims and disputes areas, her experience includes domestic and international power, cogeneration, water and wastewater treatment plants, defense hydrant fueling systems, military family housing, dredging, telecommunications projects, nuclear steam generator replacement projects, dams and reservoir projects, commercial structures, and international and Middle Eastern dispute-resolution proceedings. She is a graduate, magna cum laude, of the Tulane University School of Law and is a member of the Order of the Coif. She received an undergraduate degree in accounting from the University of Virginia and holds a certified public accountant (CPA) certification from the Commonwealth of Virginia. She is a member of the ABA Construction Forum and Section of Public Contract Law. She has served on the Executive Board and as a member of Women Construction Owners & Executives, USA, and has served as co-chair, vice chair, and a member of the Construction Committee for the American Bar Association Section of Dispute Resolution. She is admitted to the Virginia and District of Columbia Bars.
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contributors xxxiii
Nicholas J. Surace is an associate in the law firm of Smith, Pachter, McWhorter PLC, located in Tysons Corner, Virginia. His practice includes construction, government contracts, and white-collar matters. He has assisted clients with litigating and settling construction disputes in Virginia state court and federal district courts. Mr. Surace has also assisted clients with government contracts disputes relating to cost disallowance issues and other cost claims before the Armed Services Board of Contract Appeals and Civilian Board of Contract Appeals, in addition to assisting clients with bid protests at the state level before the U.S. Government Accountability Office, the U.S. Court of Federal Claims, and the U.S. Court of Appeals for the Federal Circuit. He assists the firm’s white collar practice with internal investigation matters. Mr. Surace is a member of the ABA’s Section of Public Contract Law and regularly attends meetings of the Accounting, Cost & Pricing Committee and the Bid Protest Committee. He is a member of the U.S. Green Building Council’s National Capital Region Chapter. Mr. Surace also serves as a Vice Chair for the ABA SEER Renewable, Alternative, and Distributed Energy Resources Committee. Prior to law school, he served in Virginia state government.
Chapter 15—Bonds and Liens Rebecca Glos is a partner within the surety group at Watt, Tieder, Hoffar & Fitzgerald LLP, who provides a full range of litigation services in all aspects of construction and surety law on a state and national level. In particular, she specializes in resolving disputes arising from residential and commercial subdivision projects. She has evaluated and argued relevant provisions of the California Subdivision Map Act before state and federal courts, and consequently she has been able to advise clients on the scope of a surety’s responsibility on a defaulted subdivision project, determining the type of work covered by a subdivision bond, options by which the surety can recover money from the construction lender, and manners in which the surety can negotiate with bond obligees to minimize the surety’s potential liability. In addition to litigating subdivision bond claims, her practice includes litigating public and private construction disputes involving
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
xxxiv
Contributors
sureties such as resolving time-related claims (delay/impact), enforcing payment defenses against bond claims, analyzing scope claims and litigation (differing site conditions, change orders, and inadequate plans and specifications), and providing counseling and transactional services to the construction industry (contract preparation and negotiation). She has handled matters involving all types of construction projects, including commercial and residential subdivision projects, water treatment plants, waste processing facilities, power plants, and state highways. She has worked in various legal settings, including arbitration and mediation, and has independently and successfully carried cases through trial.
Chapter 16—Insurance Issues: Construction Claims of a Different Nature Scott C. Turner, Esq., is an attorney at the San Francisco, California, and Washington, D.C., offices of Smith, Currie & Hancock, a national law firm specializing in construction law. He is a construction insurance attorney with more than 27 years of experience securing insurance recoveries for property losses and defense and indemnification for liability resulting from construction disputes and defects. He wrote the 1,700-page legal treatise Insurance Coverage of Construction Disputes (2nd ed. Thomson Reuters Westlaw 2016).
Chapter 17—Alternate Project Delivery: Claims in Design-Build, Guaranteed Maximum Price, and Other Delivery Methods Richard E. Burnham, construction industry executive and attorney, recently retired as director of Trauner Consulting Services, Inc. He brings years of hands-on experience with all types of projects and a spectrum of contract delivery methods from various perspectives. His past experience includes serving as a vice president of a major international contractor whose $1 billion plus annual revenue included major building and heavy construction projects for both public and private clients, as a senior manager of a major engineering company, as an advisor to public transportation agencies, and as an expert witness
Construction Contract Claims, Changes, and Dispute Resolution
Downloaded from ascelibrary.org by 37.44.207.48 on 01/19/17. Copyright ASCE. For personal use only; all rights reserved.
Contributors
xxxv
regarding the proper administration and analysis of changes, delays, and damages. As a former adjunct professor at a highly regarded engineering college, he has lectured on litigation avoidance, analysis of construction claims, and critical path method scheduling. He holds a Bachelor of Arts degree in economics from Georgetown University and received his Juris Doctor degree from Villanova University School of Law. Mark F. Nagata is a shareholder and director at Trauner Consulting Services, Inc. His expertise lies in the areas of construction claims preparation and evaluation, development and review of critical path method schedules, delay analysis, dispute resolution, specification writing, and training. He was a contributing author and continues to provide additional revisions to the AACE International’s Recommended Practice No. 29R-03 for forensic schedule analysis. This is the first industry publication to comprehensively classify the many schedule analysis techniques. His contribution included describing and defining the contemporaneous period analysis, also called the contemporaneous schedule analysis. He is a coauthor of Construction Delays: Understanding Them Clearly, Analyzing Them Correctly (Second Edition) Elsevier 2009. He also continually writes technical papers and articles for industry publications and speaks nationally on scheduling and claims analysis topics. He has presented at mediation and has extensive experience in authoring expert reports, written testimony, interrogatories, discovery requests, and questions for deposition and cross examination, and he has developed demonstrative exhibits for trial. He directs and performs all types of analyses, from schedule delay analyses to inefficiency analyses and the determination of damages. In addition to assisting clients in litigation, he evaluates project performance and change orders and works closely with his project teams to resolve disagreements and avoid disputes during construction. His analyses spread across all areas of construction, including bridge, highway, transit, transportation, museum, health care, government, schools, entertainment, laboratory, environmental, residential high-rise, nuclear, and retail projects.
Construction Contract Claims, Changes, and Dispute Resolution
