DISTRICT CONSTRUCTION ENGINEER PANEL DISCUSSION

Contract Management:Claim Avoidance and Handling

Keith Compton, P.E.District 5 Construction Engineer

Basin

Ted Wells, P.E.District 3 Construction Engineer Rock Springs

Claim Avoidance and Handling

Claim Avoidance and Handling

Role of the DCE Provide guidance to RE with regard to potential dispute

situations. Pre-Construction (Plan Development) During construction (Contract Admin)

Ensure accurate understanding of plans and specs Provide guidance and support in analyzing a claim

Do we have a clear understanding of what the dispute is Can entitlement be shown Ensure an objective viewpoint Assess the strength of our position Ensure consistency across the district and state

Consider effects of a decision

Claim Avoidance

Quality Plans and Specifications Checking the plans. Make sure to

thoroughly review the plans. All work is adequately called out and paid for.

(Ensure 109.2 is clearly understood and reflected in the contract)

Summaries are clear and concise Quantities are accurate Project is constructible

Reviewing Special Provisions Are they understandable? Are they reasonable? Do they put undo responsibility on the Contractor?

Check for ambiguities or conflicts in the contract

Claims Avoidance: Pre-Construction

Job Showing Be careful how we show our jobs

Stick to the contract, do not speculate or give opinions Establish job showing notes and do not stray from them

Access issues to determine the need for an addendum Bid Tabs

Review bid tabs against other contractor bids Any individual items that are sig different?

Know the Plans and Specifications Ensure a review of the project requirements and

inspection needs prior to start of work Do not rely on your memory

Claim Avoidance

Communicate Often on both the Good and the Bad Always go through the Prime Be fair, firm and consistent Be careful what you do say or don’t say

Do not direct the means and methods Do not allow out of specification work to continue

Written over E-Mail (Remember your e-maillike your diaries are public information and are open to discovery)

Project Prosecution and Progress

Schedule Review & Contract Time Ensure requirements outlined in 108.3.2 are met (ie. incl.

quant & production rates for critical activities) Accept or reject the schedule (108.3.2.1), don’t Approve! Request Schedule Updates

Withhold payment until you receive a new schedule Why is this important?

Good schedule may avoid dispute or assist in resolution Contractor is required to substantiate a request to ext the completion

date with a project schedule in accord to 108.6.1 Initial schedule should be a reasonable indication on how contractor bid

the project Watch for added work without adding time

Could set up for an acceleration claim (more resources to do same work) add time also to the contract up front

Claims Avoidance: Construction

Document Agreements

Follow up with letter and/or E-61 as required Disagreements

Will the situation escalate? Does the disagreement need to be more formally pursued in 104.2.7?

Decisions made on the project Daily Note

Working labor force Equipment (Both working and idle) Note time work started and completed Work being performed and where Problems encountered and who was informed

Project Prosecution and Progress

Inspection Know authority w/in the specifications

105.1, Authority of the Engineer 105.11, Authority of the Inspector 105.12, Inspection of the Work

Be proactive Advise the Contractor when quality of work is poor or does not

meet specifications. It is not just a numbers game. Is the work obviously defective (Ref 113.3)

Force the Issue and get the work corrected Do Not stand by a let poor quality or out specification work

continue and tell the Contractor to remove it after you watch it be put in

Document!!!!

Contractor – Engineer Notification

104.2.7 Sets forth criteria that must be followed when the Engineer considers a request for a Contract Amendment

When to use this specification? Per spec, only consider contract amend when followed

Intent is to identify and resolve issues quickly Avoid dealing w issues “after the fact” Establish best way to mitigate impacts and, if appropriate, pay for changed work

Ensure information outlined in 104.2.7.3 is received Meet with the contractor to ensure a clear understanding of the

issue Within Ten Days of written notification by the Contractor, either

accept or deny the request or request additional information. Additional information.

Ensure you have ALL the information you need to make a decision Be clear what information you need and by when. More than one request may be necessary

Contractor –Engineer Notification

Ensure that it is understood that there are 3 methods of payment for extra work Existing bid items, negotiated price, or FA If an agreement cannot be reached, FA is the only option

Issue final response within Ten Days after receipt of this information Make sure to reference in the letter that this is the Final

Written Response according to 104.2.7.5

Claims Handling: Evaluation of the Dispute

Entitlement, based on the contract is the contractor due compensation Differing Site Condition (104.2.2) Significant Changes in the Character of Work (104.2.4)

Impacts, to what degree was the contractor operations, schedule effected What exactly is the contractor asking for? Is there a bottom

dollar? Cost – how much is the contractor owed. Need to look at only

what has changed from original bid, not “cost +” Delay – Need to be able to substantiate with schedule(s)

Claims Handling: Evaluation of the Dispute

Do we have a clear understanding and/or interpretation of the contract in regard to the issue? Is the contract clear? Do we need to tap other areas within the Dept for

expertise?To determine or decide the above, it is critical

that all pertinent information was included in the claim package and evaluated by the RE

The Decision Consider the strength and defend ability of the RE

Decision based on WYDOT documentation. Will the decision set precedent or has it already been set

in this District or elsewhere in the State?

105.15 Dispute Resolution

Notification – The Contractor must notify the Engineer within five days of receipt of the Engineer’s final response to the request for a contract amendment. Must be sent Certified Mail Must clearly state the activity or item of disputed and

the reason for the continued disagreement.

105.15 Dispute Resolution

Upon receipt of this notice, the Engineer can direct the Contractor to continue the disputed work Force Account records will be kept on

this work.

Supporting Documentation 105.15.2

Within Thirty Calendar Days, the Contractor must send to the Engineer complete documentation supporting the requested contract amendment by Certified Mail “Return Receipt Requested.” Data to be included:

1. Copies of all previous correspondence related to the disputed work 2. Data and information used to assemble bid, if relevant to dispute 3. Schedules and updates, if time delays are relevant to dispute 4. Documents similar in nature to those used to substantive payments for extra

work. 5. Supporting actual cost records 6. Accounting records and statement, if overhead is relevant

Compare to the Dispute filed in 104 Is it the same dispute? Is the same rationale to show entitlement being pursued?

Supporting Documentation 105.15.2

Ensure that Submission of Certification of documentation statement is included

The undersigned is duly authorized to certify the enclosed documentation on behalf of (the Contractor).

(The contractor) certifies that the documentation is submitted in good faith, that the information provided Is accurate and complete to the best of (the contractor’s) knowledge and belief, and that the monetary amount requested accurately reflects the contract amendment for which (the contractor) believes the department is responsible.

(THE CONTRACTOR)

By: _____________________(Name and Title)

Date: ____________________

105.15.3 Engineer Response

Thirty Days after receipt of the supporting data, the Engineer will submit his decision by Certified Mail. This response must include all documentation not provided in the Contractor’s package. Ensure RE response and supporting

documentation for analysis of the claim is included

Submission of additional information at any subsequent level of review is not allowed after the Engineer Decision. Ensure the claim package is organized and

complete. Remember the basis for subsequent decisions

may be based solely on the information provided.

105.15.4 Appeal to District Engineer

Within Thirty Days of receipt the Engineer’s Decision the Contractor must notify the District Engineer by certified mail that the Engineer decision is unacceptable.

Thank You and Questions/Discussion