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The George Washington University
Lecture Series
Presented by
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Dispute Humor
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Employment Disputes (perhaps for another speaker)
SEE: EEOC
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Lecture Overview:
I. Dispute Management through Contracts
II. Change Clauses and Claims
III. Disputes Arising in the Context of Scheduling
IV. Forms of Dispute Resolution
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I. Dispute Management Through Contracts
A. Bidding
B. Contract Formation
C. Project Execution
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I. Dispute Management Through Contracts
A. Bidding Issues
– Client Issues
• Owner, Designer Issues
• Clearly Defined Scope? (number one source of disputes)
– Subcontractor Issues
• Un-level playing field among bidders
– Private Commercial Projects
• Flexible process, discretionary
– Public: Federal, State or Local Government
• Complex Statutory regulations
– CFR = Code of Federal Regulations is the “codification of the general
and permanent rules published in the Federal Register by the executive
departments and agencies of the Federal Government.”
– FAR = Federal Acquisition Regulations (Title 48 of CFR)
– Other agency specific regulations
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I. Dispute Management Through Contracts
A. Bidding Management
Manage by Formalizing the Process
– Create even playing field
• Same Bonding (limits, type: performance and payment)
• Process for correction of bid mistakes
• Reduce Subjectivity
– Use of numeric winner (rate contractors on a scale)
• Scope Clarified – what is ordinary course of business
– Pre-bid conference to ensure communication of
expectations (remember the tree analogy)
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I. Dispute Management Through Contracts
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I. Dispute Management Through Contracts
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I. Dispute Management Through Contracts
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I. Dispute Management Through Contracts
B. Contract Formation
Clauses that cause disputes
– Add vagueness to scope
• Ex: Miscellaneous Metals
– Add subjectivity to performance completion
• Ex: words like, “to the satisfaction of the Owner”
– Create non-typical roles
• OFCI: Owner furnished, contractor installed
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I. Dispute Management Through Contracts
B. Contract Formation
Clauses that address disputes
– Changes Clauses
• Owner/Client initiated changes
• Change Directives
• Requests for Change Orders (differing site conditions, etc.)
– Dispute Resolution Clauses
• Mandatory Arbitration Clauses
• Choice of Venue or Choice of Law Clauses
– Other Rights/Responsibilities Clauses
• Termination
• Claim notice provisions
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I. Dispute Management Through Contracts
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I. Dispute Management Through Contracts
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II. Change Clauses and Claims
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II. Change Clauses and Claims
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II. Change Clauses and Claims
Claim v. Change
A change is an event or action by a party modifying the scope, timing,
or cost of the work from what was contracted. It may also be a change
to the conditions by which the work is performed, or a failure to meet a
contractual obligation. Changes may be compensable or non-
compensable.
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II. Change Clauses and Claims
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III. Disputes Arising in the Context of
Scheduling
AIA Document A201, General Conditions of the Contract
for Construction
4.3.8 Claims for Additional Time
4.3.8.2 If adverse weather conditions are the basis for a Claim for
additional time, such Claim shall be documented by data
substantiating that weather conditions were abnormal for the period of
time and could not have been reasonably anticipated, and that weather
conditions had an adverse effect on the scheduled construction.
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III. Disputes Arising in the Context of
Scheduling
Simply put:
Delay
• Project does not complete as planned
or
Acceleration
• Project completes faster than planned
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III. Disputes Arising in the Context of
Scheduling
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III. Disputes Arising in the Context of
Scheduling
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IV. Forms of Dispute Resolution
A. Negotiation
B. Mediation
v. Arbitration
C. Litigation
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IV. Forms of Dispute Resolution
A. Negotiation and Settlement Tactics
Negotiation lives through all stages of a dispute
– Begin before formal negotiation sessions
Determine goals from the onset
– Stick to objective goals
How much are you able to concede
– Find the reasonable range of each issue before beginning the
negotiation
Determine opposition’s positions, weaknesses, and
possible goals
– What are the resources of the opposition
– What is the knowledge base (do they need to be educated as to
certain details before they can make an informed decision)
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IV. Forms of Dispute Resolution
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IV. Forms of Dispute Resolution
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IV. Forms of Dispute Resolution
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IV. Forms of Dispute Resolution
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IV. Forms of Dispute Resolution
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IV. Forms of Dispute Resolution
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IV. Forms of Dispute Resolution
C. Litigation
Why go to trial
– Parties unable to negotiate settlement
– One party for political or economic reasons is unable to settle
– Legal issue that creates an impasse in negotiations
– Neither party is convinced of the other’s facts
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IV. Forms of Dispute Resolution
C. Litigation
Advantages
– Provides an enforceable judgment
• Caveat: Appeals
– Can attach property as part of enforcement
Disadvantages
– Parties loss of control over outcome
• Both parties may “loose”
• Blame for a loosing outcome
• Uninformed judge or jury may not provided equitable solution
• b) Cost of trial
• c) Public forum
• d) Difficulty in presenting fact heavy / evidentiary slim cases
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QUESTIONS?
time Matters