Section 3, Appendix 3G · Web viewIncomplete Design. The status of the design documents at the beginning of the project caused a significant number of issues that affected the coordination

Section 3Appendix 3F

Examples of Reports

© 2007 DRBF Appendix 3F January 2007 Page 1 of 19

Introduction

The following reports illustrate the product of Dispute Review Boards. These were chosen to illustrate various types of disputes that are brought to DRBs and the range of formats used for reports. These reports were unanimous and were signed by all members of the DRB and were accepted by both parties.

One of the example reports is quite short. This is not always the case; reports on complex disputes have exceeded 300 pages. Reports on disputes that are not promptly brought to the DRB tend to be quite long.

Example 1: San Antonio Tunnel

For details on this project refer to the case history in Section 1, Appendix B.

Since this was the Corps of Engineers’ first DRB, their attorney (who had drafted the DRB specification) attended most of the meetings. Due to the anticipated attendance of an attorney, a civil engineer who was a practicing construction attorney was chosen as the third member of the DRB.

Sixteen disputes were submitted to the DRB. Two were presented in a written submission to the Chair only; the contractor later withdrew both of these disputes. The contractor withdrew another dispute after presentation to the DRB. Of the thirteen that were heard by the DRB, the owner asked for reconsideration of two reports. The DRB submitted additional reasoning and stood by their original reports in both cases.

Dispute No. 13, presented below, involved complicated reinforcing steel in the concrete elbow connecting the 24 foot diameter tunnel to the 30 foot diameter, 120 foot deep outlet shaft. The report partially favored the owner and partially favored the contractor. It included guidelines for quantum. Based on the report, the parties successfully negotiated quantum and duration.

Report [The following is the verbatim text of the DRB report.]

Dispute No. 13 - San Pedro Creek Tunnel Outlet Elbow Rebar

Dispute:

Is the contractor entitled to additional time, or compensation, or both for:

1. Furnishing and installing additional rebar required by plan omissions and government additions to the plans.

2. Furnishing and installing additional rebar due to the government requiring longer splice lengths.

3. Government delays in responding to requests for information and/or clarification of plans?

Contractor’s Interpretation

1. The relevant plans were incomplete. The actual rebar required was approximately 508,000 lbs. more than was reasonably estimated at bid time.

2. Rebar splice lengths actually required were longer than could have been reasonably expected at bid time.


3. Slow government response time and multiple design changes delayed completion of work more than the 18 day time extension granted in Mod P00058.

Government’s Interpretation

1. Mod P00058 fully compensated the contractor for all additional rebar required by the government.

2. ACI Class C rebar splices were required as specified. The specifications clearly stated that all splices shall be ACI Class C.

3. The contractor was not delayed more than the 18 days granted by Mod P00058.

Recommendations

1. The plans did not show all necessary rebar and did not define a rebar layout that was practical to construct.

The contractor should be fully compensated for costs and time impact that can be shown to be caused by plan omissions and changes to the plans.

(The DRB has been asked not to make specific recommendations regarding quantum, hence will not do so. However, the following general thoughts are offered for the consideration of the parties:

a. Determination of quantum could logically be based on a comparison between reasonable cost and time or installation of the rebar actually used, relative to what would be anticipated from a reasonable interpretation of the plans at bid time. A detailed analysis of each of these two cases should be made.

b. The quantum analysis should account for delays attributed to design changes and additions directed by the government.

c. The contractor should be reimbursed for additional expenditures for detailing costs incurred due to the incomplete and inaccurate contract plans and those incurred as a result of the government's revisions and additions.)

2. The contractor is not entitled to additional compensation related to rebar splice length.

3. Whether or not the contractor is entitled to delay time in excess of 18 days would require a detailed analysis of quantum, as described under recommendation 1 above.

Explanation

1. The concrete and rebar of the lower elbow of the outlet structure is extremely complicated. The geometry of the outlet elbow differs from the inlet elbow in that a collar beam is provided within each end of the elbow, the invert is flattened, and a dewatering sump is added.

The rebar as originally shown was not constructible; to correct this, layout of both the invert rebar and the arch rebar was revised. The sump was enlarged and rebar in the sump area, omitted from the original plans, was added. The invert rebar was also revised somewhat for the contractor’s convenience.

In addition, much of the elbow rebar was unusually difficult to place. During administration of the contract the government recognized the problems inherent in positioning this rebar and relaxed the specifications for variation of minimum concrete cover and of position.

In summary, the exact nature of a desired, but practical rebar layout was not defined by the plans. This is evidenced by the changes in invert and arch rebar layout which evolved during detailed construction planning.


2. The contract requirements for splice length could have been more clearly and directly stated, for example in a manner such as that later used by the government for Phase III work.

However, the DRB understanding is that a careful analysis of the specification requirement that “All splices shall be ACI Class C splices ....” (Specification Section 3C, ¶7.4) would lead to the splice lengths actually required by the government. This conclusion would be obtained either from the appropriate table in ACI 315, or from appropriate use of equations and criteria in ACI 318.

Finally, no evidence was presented to indicate that the contractor bid allowance for splices was in any way dependent upon any misunderstanding or confusion about interpretation of the specification requirements for splices.

3. Mod P00058 acknowledged that government redesign of the sump rebar caused some delay, and granted an 18 day time extension. Determination of whether or not this is an appropriate allowance requires a more detailed analysis of quantum, as described under recommendation 1.


Example 2: Seattle Freeway Interchange

This $19 million project was constructed for the Washington Department of Transportation (WashDOT) by a joint venture of General Construction and 3A Industries in 1991 and 1992. The project involved construction of a 1,100 foot long high occupancy vehicle overpass through an extremely sensitive environmental area, plus bridge widening, retaining walls, mitigation ponds and a major utility relocation.

The second of two disputes brought to the DRB concerned the use of non-approved materials. Contract administration of this disputed issue was complicated because a utility company was responsible for inspection and payment of the utility relocation and for paying for the relocation. However, the utility company had no contractual relation with the prime contractor. The utility relocation work was performed by a subcontractor who had no previous experience working with the utility company.

All four parties accepted the DRB report: WashDOT, the utility company, General Construction and the subcontractor.


Dispute Review Board Report #2

Statement of Dispute:

Did the contractor’s use of KOP-COAT Bitumastic 300-M coal tar epoxy comply with the contract requirements for interior lining of the water line fittings?

Analysis:

The Dispute Review Board carefully reviewed the parties’ presentations, the Contract Standard Specifications and Special Provisions and it relied on the following key factors in its deliberation in this matter.

The contractor has a basic contractual obligation, per Section 1-06.1, Source of Supply and Quality of Material, of the Washington Department of Transportation Standard Specifications as follows:

“All equipment, materials, and articles incorporated into the permanent work: Shall meet the requirements of the contract and be approved by the Engineer.”

Recommendation:

The contractor failed to obtain written approval of the Engineer prior to installing permanent materials in the work. In accordance with Standard Specification Section 1-05.6, the contractor shall bear the cost of replacement of unacceptable material. The Dispute Review Board recommends that the contractor’s claim be denied due to lack of entitlement.


Example 3: San Francisco Research Laboratory

The J. David Gladstone Institute Project is a privately funded biotech research laboratory located in San Francisco, California. The original contract did not include a DRB. The DRB process was added to the contract by change order. The DRB heard three disputes, all in a single hearing. The recommendations of the DRB were accepted by the parties.


May 4, 2004

RE: J. David GladstoneInstitute ProjectAt Mission Bay, San Francisco

Gentlemen:

On April 22, 2004 at the request of Rudolph and Sletten, Inc. (R&S) the Disputes Review Board (DRB) held a hearing to consider the merits of the following disputes:

1. PCO No. 8112 “Drilled Supports due to delay in MEP Coordination for 5th and 6th Floor Inserts”

2. PCO No. 8125 “Overtime and Added Detailing Team on 6th Floor”

3. PCO No. 8180 “Added Ductwork for 6th Floor”

A list of attendees is included as Attachment A.

PROJECT OVERVIEWThe J. David Gladstone Institute Project is a 191,000 square foot, biotech laboratory building in the Mission Bay Area in San Francisco, California. The overall projected cost of construction is approximately $74 million.

This building has six floors. The first floor includes offices, facilities support areas, a 150 person auditorium, and labs. The second floor is “shelled,” the tenant improvements will not be constructed as part of this project. The third, fourth, and fifth floors are laboratory floors, and are very similar in their lab layout. The sixth floor and interstitial area houses are the vivarium level. The floor to floor height is 14’-10” for this building.

1. PCO Bo. 8112 “Drilled Supports due to Delay in MEP Coordination for 5 th

and 6 th Floor Inserts” Introduction

R&S claims additional compensation for the added cost incurred for drilled supports on the 5th and 6th floors in lieu of deck inserts prior to the concrete pours. R&S asserts the root cause of their added cost as being the prolonged duration of the coordination process which was caused by incomplete drawings, lack of consultant support in the coordination process, and the lack of timely RFI responses.

The owner, the J. David Gladstone Institute (Gladstone) takes the position that R&S is required to provide coordination services in accordance with the contract documents, and that proper coordination would not have led to the necessity of drilling for the installation of supports.

2. PCO No. 8125“Overtime and Added Detailing Team on 6 th Floor” Introduction

R&S claims additional compensation for the cost of an additional detailing team and their overtime and asserts that the root cause of their added cost as being the prolonged duration of the coordination process which was caused by incomplete drawings, lack of consultant support in the coordination process, and the lack of timely RFI responses.


Gladstone takes the position that R&S is required to provide coordination services in accordance with the contract documents, and that with a few exceptions, the installed work generally matches the design drawings, a significant amount of effort was required to detail the work, the contractor should have been aware that detailing the work would be difficult and require significant effort, and additional manpower was applied to minimize shop drawings schedule impacts on the construction schedule.

Note: PCO Nos. 8112 and 8125 were considered together as presented by R&S.

CONTRACTOR’S POSITIONThe following is quoted from the position paper submitted by R&S to the DRB. The entire position paper, including exhibits, is incorporated herein by reference.

“…

Coordination-Industry Standard

It is our position that the coordination effort required for this project exceeded industry standards.

Industry standard coordination, with regard to plan and specification documents, would include the following:

Minor rerouting MEP items in designated areas Minor modifications to duct sizes in order to fit in designated areas Minor addition of elbow/bend and lengths of piping Provide supports for MEP items Provide access for function and maintenance

Industry standard coordination, with regard to plan and specification documents, would not include the following:

Major rerouting MEP items in designated areas Major modifications to duct sizes or aspect ratio Major addition of elbow/bend and lengths or piping Redesign or calculations for services For example, rerouting lab piping, which serves the first floor, to the second floor, and then back down to

serve the first floor.

For this project, coordination could not begin in certain key areas of the first floor because with the MEP systems shown on the contract documents, even with the addition of beam penetrations and ceiling height changes, the systems would not fit…”

Limited Design Team Resources

It is important to note that during the coordination period, NBBJ and the consultants were distracted by submitting permit drawings and responding to permit comments. It appeared that the resources of the consultants and NBBJ were limited and could not support the coordination effort, timely responses to RFI’s submittal processing, and permit processing. This amount of support was necessary if the project schedule was to be maintained.

Contributing Factors to Cost Impacts

The cost impacts delineated in change orders 8112 and 8125, which are for the additional costs for drilling supports in lieu of inserting supports prior to concrete deck pours, and the cost for a second detailing team for the sixth floor respectively, are due to two main factors:

Incomplete design drawings at the time of subcontractor bidding Extended duration in response to items brought up to complete the design

Rudolph and Sletten, Inc.’s, and our subcontractor’s assumption upon agreeing to the construction schedule desired by the owner were:

Design drawings would be significantly complete and coordinate such that everything that is shown in a designated area should fit in that area with “normal and customary” coordination by the MEP trades

If there were questions with regard to the design, these questions will be addressed by the design team in a real time basis to support the construction schedule, i.e. within 5 business days as outlined in specification section, or better.


Unfortunately in numerous instances, neither of these assumptions was achieved by the design team, which combined to significantly impact Rudolph and Sletten, Inc. and the MEP subcontractor’s coordination process…”

Project Schedule Background

The structural steel bids provided a significant opportunity for schedule improvement which was accepted by the owner. Based upon the alternate bid delivery information provided by Herrick Corporation, the project could achieve a delivery improvement of one month, from July 30 to July 1, 2003, at no additional cost. Gladstone accepted this acceleration, as well as paid additional costs to have Herrick work overtime in the field during erection to ensure completion of the steel erection per the project schedule. The affect of this change is significant, in that it shortened the time available for MEP coordination by at least 4 weeks, due to earlier start of erection…”

MEP Coordination Impact of the Structure Schedule

It is important to understand why the MEP coordination schedule is critical to erection of the structural frame.

It is an industry standard to “insert,” i.e. install hangers, block-outs, etc. from above prior to concrete placement when erecting multi-story buildings. The alternative to inserting prior to concrete placement is to drill in the anchors, and core drill or jackhammer out any sleeves or block-outs, after concrete placement.

Inserting is done for two reasons,

The inserts and hangers have a much greater design load capability when installed from above than when drilled from below

It is significantly less expensive to insert the decks than to drill them from below

In order to properly place the inserts and block-outs, the subcontractors need to have detailed layout drawings of all of their services and sleeve locations. These detailed dimensions come from the detailed shop drawings of each contractor, which have then been “coordinated” such that there are no, or at worst very minor, interferences when work is installed in the field. Thus, by shortening the time available for coordination due to the steel schedule improvement, the coordination effort then becomes a potential critical path activity…”

Incomplete Design

The status of the design documents at the beginning of the project caused a significant number of issues that affected the coordination effort. These items include the following:

First floor corridor at grid lines 1-17 and E-E.2. There was insufficient space to install all of the utilities shown on the various design discipline drawings in this space

Lack of basic design information, such as wall layout dimensions, which affected where utilities came out of the slab on grade as well as other floors

Addition of a “Pre-Action” fire protection system to the third floor, which was known about during the design stage of the project, but was not shown on the design drawings

Addition of significant numbers of beam penetrations to structural steel beams, often after these beams were already installed, in order to allow all utilities shown to fit with-in the space provided

Re-design of feeders on Floors 3,4 & 5 Re-design of the sixth floor ductwork and piping system so that the indicated services could fit with-in

the given spaces

First Floor Corridor

The first floor corridor set the stage for the coordination effort on the project. Based upon preliminary review of the 75% construction set by R&S’ Mark Salvucci, (see e-mail February 24, 2003) this area was a major concern due to the amount of utilities in the area and this concern was brought up again in the March 25, 2003 flyspeck meeting. The design team was asked to review this area prior to issuing the final bid drawings, which did not happen. The final drawings were issued with essentially the same layout as previously, and after the first coordination meeting it was obvious that the design team had not performed the necessary design coordination in this area, due to the magnitude of the conflicts encountered. The key issue in this area is that there was a lack of space. This was determined by detailing the MEP scope elevations and the specified ceiling height. The following sketch exhibits the lack of space to fit the MEP system in the corridor.

This issue was brought to the design team’s attention on June 5. A design resolution was finally issued on June 23, which entailed lowering the corridor ceiling, and moving the electrical bus duct from the first floor up to the second floor where there was more space and then back down to the first floor. (This was the solution suggested by the MEP team at the June 16 Coordination Meeting.)


Once this design was issued, coordination continued. Additional problems were encountered and the first floor design issues are finally resolved by July 31. The overall schedule impact was a delay of over four and a half weeks…”

OWNER’S POSITIONThe following is quoted from the position paper submitted by Gladstone (from project Architect NBBJ) to the DRB. The entire position paper including exhibits is incorporated herein by reference.

“…We have reviewed the PCO #8112, dated 7/21/03, submitted from Rudolph and Sletten (R&S) for “Drilled supports due to delay in MEP coordination for 6th & roof decks” and offer the following comments and recommendations.

Background:

1. The projects aggressive project schedule required a fast track design, permit, and procurement method including early steel bid, procurement, and erection schedule followed by other trades, including the MEP awarded subcontractors.

2. During the MEP coordination effort, of which the design team took part, Rudolph & Sletten continued their concrete pour schedule on the 6th floor and roof decks without all detailed deck inserts in-place. As a result it was necessary for several slab penetration to be drilled supports after the decks were poured to maintain the project schedule.

3. Drilled deck inserts are acceptable but have a premium cost over “installed inserts.” Gladstone owned the “installed inserts” but Rudolph & Sletten is entitled to the premium for drilled inserts. We have reviewed the detail back-up attached and find the pricing reasonable.

Recommendation: NBBJ recommends that PCO #8112 be authorized and paid to Rudolph & Sletten under the Contractor’s Contingency, as funds are available.

Comments:

1. In our view this is no different that the prior submitted and approved PCO’s for late MEP coordination of roof structural steel and other drilled supports, also paid through the Contractor’s Contingency.

2. R&S has declined to take this out of the Contractor Contingency and feel the cause for delay was a result of errors and omissions by the design team…”

We have reviewed the PCO #8125, dated 8/11/03, submitted from Rudolph and Sletten (R&S) for “Additional detailer for the 6th floor” and offer the following comments and recommendations.

Background:

1. The project’s aggressive project schedule required a fast track design, permit, and procurement method including early steel bid, procurement, and erection schedule followed by other trades, including the MEP awarded subcontractors.

2. The typical floor-to-floor height of the building is 14’-10” which is very tight for a steel structure research building with fairly high ceilings.

3. During the MEP coordination effort, of which the design team took part, Rudolph & Sletten’s subcontractors where required to add additional detailing team members to keep up with the deck and concrete pour schedule.

4. The sixth floor detailing, as part of the MEP coordination, is the responsibility of Rudolph & Sletten and their subcontractors.

5. Per the Contract Specifications Section 15010, 3.04, it is the responsibility of Rudolph & Sletten and their sub-contractors to complete and submit MEP Coordination Drawings for review and approval by the design team prior to constriction. It is the sole responsibility of Rudolph & Sletten and the MEP subcontractors to execute this work with the contracted project schedule at no additional cost to the owner.

6. In good faith, NBBJ participated and aided with the contractor’s coordination effort to maintain the compressed schedule.

7. Rudolph & Sletten has submitted this Change Order Authorization for the entire detailing of the 6th floor plus overtime premiums to expedite within the contracted schedule…”

DRB FINDINGS AND CONCLUSIONS At the DRB hearing on April 22, 2004, presentations were made by R&S and Gladstone declaring the respective positions of the parties concerning that dispute “Drilled Supports due to delay in MEP Coordination for 5th and 6th Floor Inserts,” and “Overtime and Added Detailing Team on 6th Floor.”


From the presentations and information provided by R&S and Gladstone, taken together with the contract documents, the DRB is of the unanimous opinion on the following:

1. Prior to the June, 2003 finalization of the GMP the following conditions were known to the contractor for several months:

a. The project was very compact and difficult to fit all systems into the space above due to the requirement for a 14’ 10” floor to floor dimension;

b. The design and resulting coordination of all utilities in the 1st floor corridor had to be changed which had delayed all follow on work;

c. The owner and architect were having problems in securing the required permits which was detracting the design team from other normal duties;

d. The number of RFIs to date had been high and the return time for many crucial ones was much longer than expected;

e. The delivery and resulting erection of the structural steel had been moved back in time about one month. This allowed moving back in time all follow on construction operations which compressed the time available for the subcontractors to carry the MEP coordination;

f. In accordance with the contractor’s master schedules dated 11-21-02, 4-24-03, and 5-17-03, the time available for MEP coordination was compressed by approximately six weeks.

The DRB finds that the contractor and its subcontractors should have considered the above factors when developing a cost estimate for deck inserts and for MEP coordination within the GMP.

DRB RECOMMENDATION The DRB recommends that the R&S claim for additional compensation for “Drilled Supports due to Delay in MEP coordination for 5th and 6th Floors,” and “Overtime and Added Detailing Team on 6th Floor” be denied on merit.

3. PCO No. 8180 “Added Ductwork for 6 th Floor” INTRODUCTION R&S claims additional compensation for the added cost of an increased quantity of sheet metal materials due to major duct work rerouting at the sixth floor during coordination.

The owner’s position is that the necessary ductwork modifications fall within the normally anticipated MEP coordination.

CONTRACTOR’S POSITION The following is quoted from the position paper submitted by R&S to the DRB. The entire position paper including exhibits is incorporated herein by reference.

Sixth Floor Redesign

By the time 6th floor coordination started there was significantly more design team help then there was with the first floor coordination. Due to this fact, there were less RFI documentation and written communication then at the first floor.

The coordination team re-drew and re-coordinated the 6th floor three times before the coordination drawings were completed. These changes were never documented officially by the design team. PCO 8180 is a result of these changes since there were so many changes associated with the 6th floor. The result is that the MEP systems had to be moved around resulting in additional ductwork, fittings, labor etc. It is important to review the contract drawings for the sixth floor and interstitial areas and compare them with the shop drawings to understand the magnitude of the rerouting…”

OWNER’S POSITION Gladstone did not provide a written position paper for this dispute. For the owner’s position, refer to the Introduction, above.

DRB FINDINGS AND CONCLUSIONSAt the DRB hearing on April 22, 2004, presentations were made by R&S and Gladstone declaring the respective positions of the parties concerning the dispute “Added Ductwork for 6th Floor.”

From the presentations and information provided by R&S and Gladstone, taken together with the contract documents, the DRB is of the unanimous opinion on the following:


1. The difference in complexity and constructability of the 6th floor ductwork as depicted in the referenced drawings forms the basis of the DRB findings and conclusions.

2. Reference Drawing M2.62 (white set) and Drawing M2.72 (green set) submitted with the R&S Position Paper.

3. The ductwork depicted on M2.72 (green set) and actually constructed shows considerably more ductwork than shown on Drawing M2.62 (white set)

The DRB finds that the contractor was required to install considerably more ductwork than could reasonably have been anticipated from the design.

DRB RECOMMENDATION The DRB recommends that the contractor is entitled to additional compensation related to its claim for “Added Ductwork for 6th Floor.”


Example 4: Florida Department of Transportation

In this dispute the contractor contended that the owner’s representative modified the contract at two different mandatory pre-bid meetings. The contractor alleged that the owner’s representative had made verbal statements that modified the contract concerning the Quality Control Testing requirements in such a way that the owner was going to do the testing. The owner performed the testing for approximately four months before making a demand on the contractor to do the testing as outlined in the specifications for the project. A hearing was held in the offices of the owner to determine resolution of this issue.

Typical of most of Florida Department of Transportation reports, the complete positions written by each party are included so if it goes to court there will be a record of the positions from which the recommendations were made.


August 27, 2003

Ref: THCEA Construction Project No.: 51.40.02, 78th Street to I-75.

Gentleman:

Hubbard Construction Company (Hubbard) and the Tampa-Hillsborough County Expressway Authority (Authority) requested a hearing before the Disputes Review Committee (Committee or DRC) to determine who is responsible for the Quality Control Sampling/Testing (QC 2000) on this project. A hearing was held in the offices of the Authority on August 23, 2003, to determine resolution of the above issue.

CONTRACTOR’S POSITION

Hubbard bid the above on July 17, 2002, and was the apparent low bidder for the amount of $35,732,229.40. The Authority’s budget was not sufficient to complete the project as bid, and over the course of the next several weeks there were at least three negotiation meetings to reduce the scope and price so that the Authority could proceed and build the project. Hubbard was awarded the contract for $33,447,602.40 on October 15, 2002. A notice to proceed was issued the same day, and Hubbard started to work on the project.

All proceeded as Hubbard had anticipated until February 5, 2003, when Hubbard received a letter from URS Construction Services (URS) setting forth the areas of quality control and materials testing that they, Hubbard, would be required to provide. Hubbard responded with a February 28, 2002, letter to the Authority outlining their position as follows:

Soon after we submitted our Concrete mix designs, concrete QC Level I & 2, asphalt QC and mix design submittals, it was discovered by URS that there were, in fact, stipulations in our specifications to indicate a requirement to implement QC 2000 or what is also referred to as the Contractors Quality Control Program (CQCP).

We do not agree, however, that it was the Authority’s intent to implement this program nor do we agree that URS anticipated implementing same when URS proceeded to undertake the Construction Engineering & Inspection scope of the project. Hubbard Construction did not bid this project with costs for QC 2000 or the CQCP. Neither did our competitors.

When the revelation dawned upon all parties concerned at the time our above submittals were being reviewed, several months had passed since our award date and events associated with the project did not


cause anyone to pause and have concerns about how the quality control monitoring on the job was being handled. At the May 2002 mandatory pre-proposal meeting for the original design-build, there was no mention of QC 2000. At the mandatory pre-bid held 28 June 2002 for the 17 July letting, there was no mention of same. What was stressed by URS at that time was that this was not an FDOT project, that lab testing would be done by Law Engineering and that URS would be covering the normal items e.g. embankment, concrete - cylinder casting / breaks, asphalt, etc. At the pre-award negotiations when the Authority was looking into cost saving measures, there were no references made to the QC portion of the work. At our pre-construction conference, the contractor’s QC was not an item on the agenda. While it was agreed that a pre-paving conference would need to be scheduled, there was no similar emphasis made on the QC testing scope which should have deserved as much or better merit to be a topic of discussion. When the project shifted into gear, URS personnel sampled embankment material from our source pits, limerock from FL Crushed Stone’s mine, monitored density for embankment construction and entered the necessary information into density logbooks which on QC 2000 jobs would have had to be maintained by the contractor.

In view of the above, we request that a meeting be scheduled immediately so that this issue can be resolved quickly, fairly and so that delays to the project resulting from submittals being left pending do not irreversibly obscure the prospects for timely and successful completion.

Despite Hubbard’s objections to taking over the Quality Control, they received another letter, dated February 28, 2003, from the Authority demanding that Hubbard take over the Quality Control Program for the project. Hubbard sent a letter to the Authority on March 27, 2003, outlining their position in detail as follows:

1. Hubbard has no money in our bid for Quality Control

2. The other bidders on this project did not include Quality Control either

3. This issue was clarified at the Mandatory Pre-Proposal Conference

4. URS and the owner performed all QC without question for the first 4 months of the project

5. No QC or testing firms quoted this project to any of the bidders

6. PCL Construction, the contractor adjoining our contract, did not include any QC in their bid either

Additionally Hubbard made the following points, attached to the March 27, 2003 letter, as reasons why the Authority’s letter of February 28, 2003, directing them to assume the Quality Control Program was a complete surprise.

1. Before the project was bid, the Tampa-Hillsborough County Expressway Authority (THCEA) held a Mandatory Pre-Proposal Conference. An agenda was issued for this conference. On that agenda, item III 4; Laboratory Testing was a specific topic for discussion.

2. The Pre-Proposal Conference was mandatory and a court reporter was present to record the entire meeting. This was done so that everything stated in this meeting would be used to clarify any misunderstandings or misinterpretations in the Contract Documents.

3. In this meeting, according to the transcript, it was stated by a representative for the owner that “Laboratory testing is going to be done by Law Engineering. And we will be doing the normal items that we usually do; embankment, concrete, cylinders and asphalt, and what have you.” They went on to talk about the materials acceptance criteria matrix and specifically directed everyone to look on “page 52 of the Special Provisions” for detailed information. This was not the case for the Quality Control testing information.

4. Hubbard had its Senior Estimator Dave Shuman, with over 30 years experience in estimating and highway construction, in attendance at this meeting.

5. Contractor’s Quality Control at the time of the bid on this project was something completely new to this segment of the industry, particularly contractors performing work on Florida Department of Transportation (FDOT) projects. It needs to be noted that THCEA utilized the FDOT Specifications on


this project for the majority of its Specifications, not only in reference, but it also cut and pasted specific sections of the newer specs not yet in the 2000 Standards, such as the Quality Control Program.

6. The next question is how this meeting impacted the bidding of this project. The answer to this is that Hubbard along with the other contractors (all of which were attendees at the Mandatory Pre-Proposal meeting) that bid this project did not anticipate, nor bid, doing the quality control for this project. Hubbard’s estimator took the information discussed and recorded in his notes that at this meeting URS clarified that in the Contract Documents the owner would be handling the Quality Control Testing for the project. Hubbard relied upon this information, as did the other bidders, in preparation of its bid to the owner.

7. At no time during the meeting did the owner or its representative point out that this project would fall under the new specification for Contractor’s Quality Control Testing and that the owner would only be performing the verification testing. (It should also be pointed out at this time that the owner’s representative, URS, does a considerable amount of work with the FDOT as the construction engineer and inspector, and they were well aware that Contractors Quality Control was a new program that was just starting to be introduced to the contracting community.) If it was not the intent for the owner to do the testing on this project, URS would have made an issue of it, like it did the materials acceptance matrix. It was made clear at the meeting the owner was doing the testing, which is why there were absolutely no questions and no bidders or sub- consultants bid QC on this project.

8. It is Hubbard’s position that the Mandatory Pre-Proposal Meeting held on June 28, 2002 did clarify the Contract Documents. Since this meeting was mandatory and recorded, everything said in the meeting is binding on all parties, including the owner.

9. Hubbard bid the project, along with its peers, without adding any money for the testing. It is Hubbard’s position that the THCEA did clarify the Contract Documents and did waive the provisions for Contractor Quality Control and truly expected to not have the contractor include the Quality Control in their bids, thus, receiving the lowest bids possible for the project.

10. The owner started the project without mention of the QC Plan, which is required if it were the contractor’s responsibility. URS has been doing all tasks associated with QC, without question, for the first 4 months of the project. The owner by its actions has confirmed the intention and interpretation of the contract specifications held by every other bidder on the project. The owner’s actions do speak to the intent of the Contract Documents, and clarifications that were made in the June meeting, that the testing for embankment, concrete, cylinders and asphalt, and what have you, including laboratory testing would be performed by the owner or its representative.

11. This issue has been raised on another project and the contractor, PCL Civil has come to the same conclusions on its project with the same information as Hubbard.

12. The owner’s representative stated “we will be doing the normal items that we usually do” and at that time it was reasonable and customary to assume that the owner would be doing the testing, which had been happening on most public projects throughout Florida for many years.

The Authority replied to Hubbard’s position as set forth in their March 27, 2003 letter with a letter dated April 17, 2003 which is set forth below:

As discussed in our meeting on April 3, 2003, it is the Expressway Authority’s position that Quality Control testing is delineated in the contract documents as Hubbard’s obligation. However, we recognize that Hubbard disagrees with the authority’s position and therefore remains non-responsive to fulfilling this responsibility. Consequently, in order to preclude work stoppage or delay and to assure the quality of work performed the Authority has directed the following actions:

1. URS, the Authority’s General Engineering Consultant and Construction Manager, will perform the testing required under Hubbard’s contract.

2. All costs for such testing will be deducted from Hubbard’s monthly progress payments.

The Authority and URS will make every effort to keep such costs to a minimum, which will be enhanced by Hubbard’s commitment to strict quality standards in all materials and work performance. We look forward to working with Hubbard, toward that end, and remain committed to work together to complete a high-quality project on time and within budget.


Upon receipt of the above letter Hubbard requested a hearing before the DRC to resolve who was responsible for the Quality Control Testing on the project. Hubbard requested that the DRC consider the following points:

1. A mandatory pre-bid conference was held prior to bid and the agenda included an item for Laboratory testing.

2. The transcript for this conference describes remarks made by a representative of URS which led Hubbard to the conclusion that the Quality Control Testing for the project would be done by the Authority.

3. Contractor Quality Control was an entirely new concept at the time of bidding on this project.

4. The specific directives and instructions of URS during the mandatory pre-bid meeting defined and clarified how the bidding documents should be administered.

5. The reason for a mandatory pre-bid is so that all bidders must attend and the Authority is assured that all bidders have a complete understanding of the key components of the bid and project.

6. Neither the Authority nor URS pointed out during the pre-bid that this project would fall under the new specification for Contractor Quality Control and that URS would only perform verification testing.

7. Since the pre-bid meeting was mandatory, no one in the bid process was prejudiced by not attending and no advantage was handed to anyone in the process. The pre-bid clarified the contract documents and served to bind all concerned parties, including the Authority, accordingly.

8. At the very least, the Authority created an ambiguity with its statements at the meeting and as such is responsible for the Quality Control Testing.

9. The Authority started the project without a Quality Control plan, which was to have been submitted within 21 days of award. In addition the Authority did the testing for the first four months of the project. These actions clearly indicated the intent of the contract documents, which was that the Authority would do the testing.

10. Hubbard did not include the testing in its bid for this project and URS does have money in their contract to do the testing.

11. The Authority is presently doing the testing under the traditional Quality Control system and charging all these costs to Hubbard without consideration for costs the Authority has always been responsible for, i.e. verification and resolution testing.

Hubbard makes the final summary of their position as follows:To sum up, it should be apparent that the Authority received the lowest possible bid for this project based on the clarifications provided by it that the Quality Control Testing functions would remain with the owner. Alternatively, the Authority has waived the provisions for Contractor’s Quality Control. As set forth in its letter of May 2003, the Authority has begun deducting monies from Hubbard’s payments, which include monies for quality assurance and resolution testing that URS no longer has to perform under any circumstance. This only adds to the windfall that the Authority seeks to receive by maintaining its current position before this DRC. The Authority is not entitled to ignore the mandatory pre-bid meeting as if it never happened, and it cannot disregard the clarifications and directives provided therein. The intent of the parties has been made clear by both word and action. To the extent there is ambiguity, it must be resolved against the drafter and publisher, the Authority, and in favor of the contractor, Hubbard.

QC testing is and was always a need for the project. But if the DRC were to agree that QC testing is ultimately the responsibility of the contractor, it would be unjust and inequitable to allow URS or THCEA to reap a windfall from Hubbard when the monies are apparently encumbered for and being paid to URS to perform this service. And, as we have pointed out, there is no money included in Hubbard’s bid for this service.

AUTHORITY’S POSITION

The Authority’s position is straightforward. The supplemental specifications clearly outline the Contractor’s Quality Control responsibilities and that the Quality Control Testing is the responsibility of the contractor, while the less extensive Quality Assurance Testing is the responsibility of the


Authority. The Quality Control Testing specifications were taken directly from the Florida Department of Transportation (Department) specifications, which became standard in all Department construction contracts on July 1, 2002. The Hubbard project was bid on July 17, 2002, and executed on October 14, 2002.

During the presentation made by the Authority the following points were given as reasons to have a pre-bid meeting:

1. To explain new and different concepts such as the OCIP (Owner Controlled Insurance Program).

2. That the technical proposal had been eliminated from the specifications.

3. Negotiations would follow the actual bid to obtain the best price and one that was within the Authority budget.

4. To insure that problems would be solved at the lowest level a DRC was included.

5. The pre-bid can not change the contract without an addendum.

6. The Authority had a requirement to include the Department’s specifications because they were receiving money from the Department to construct the project, thus the requirement for the Quality Control 2000 specification being included.

URS admitted to having somewhere over $500,000 in their Hubbard contract for testing, and that the QC 2000 specification probably increased the cost of testing by 35 to 50 percent over the previously specified testing procedures. URS also stated that the costs included in their bid were to cover the Engineers QC 2000 costs. In the Authority’s package they make the following points (tab numbers have been removed from the following):April 25, 2002. By this date, the entire bid package had been distributed to prospective bidders. Included in that package were the Invitation to Submit Proposals, the Agreement which would be required for the contractor to sign, plans, General Specifications, Supplemental Specifications, Technical Specifications and all exhibits.

Paragraph 5 of the Request to Submit Proposals, dealing with the pre-bid conference, sets the tone and initiates a theme repeated throughout: “Comments, explanations, and responses provided at the conference shall not qualify or amend the terms of the Contract Documents unless confirmed in writing by addendum.” This warning is clear and is put in construction documents in order to avoid such disputes as this one.

Paragraph 5.2 states: “Before submitting a proposal, it is the responsibility of the Proposer to: (A) examine all documents thoroughly,” and emphasizes: “The Proposer is solely responsible for reading and completely understanding the requirements and specifications of the items proposed. Verification of information is incumbent upon and the sole responsibility of each Proposer. Proposers shall promptly bring to the attention of the Authority any situation in which the documents, data, or other information made available to the Proposer during the Proposal Phase appears to be incomplete or inaccurate, and the Proposer shall submit a written request for clarification. “

Paragraph 2 of the Agreement between the Authority and the contractor, which was part of the bid package, required the contractor to “do all the work ... necessary to carry out this Agreement in the manner and to the full extent as set forth in the Request for Proposal ... Technical Specifications, Supplemental Specifications Packages, Plans, Change Orders, and any Addenda...” In Paragraph 4 of this document, the “contractor represents that it has thoroughly studied and checked the drawings, specifications and schedules for the proposed work required under the CONTRACT DOCUMENTS...”

May 1, 2002. One Hubbard representative attended the first mandatory pre-bid conference. (Mike Knox).

At page 11, the Authority’s general counsel cautioned that “the documents will be ... the final word.”

At page I5, general counsel further stated, “We provided a lot of information in our details to you, but we ask that you familiarize yourself both with the specification contract documents, and the job site. That is ultimately your responsibility obviously, so please make sure that you are fully familiar with the site.”

At pages 42 and 43, the Authority’s executive director urged the proposers to let the Authority know if they needed additional time to submit written questions, stating, “I don't want you to be unsure, or trying to guess about what we are looking for on this project.”

May 10, 2002. By this deadline for written questions, none related to testing was submitted.

May 15, 2002. Proposals were submitted.


June 11, 2002. All bids were rejected and the project was rebid.

June 18, 2002. Bid documents were again made available, with the same basic provisions as originally distributed.

June 28, 2002. Four Hubbard representatives attended the second pre-bid conference. There were no questions about testing. (Dave Shuman, Mike Turner, Dave Dempsey & Robert Bristor)

July 7, 2002. By this deadline for written questions, none relating to testing was submitted, although Hubbard did submit several questions on other topics.

July 17, 2002. Proposals were submitted. In the interim, while there had been several addenda issued, none related to testing or the QC program. Therefore, the Contract Documents remained essentially as originally issued in May. The specifications regarding testing, the QC program, and the contractor’s duties, all remained intact and unchanged. Hubbard proposed on those documents, and won the contract.

Finally, from July 17 through October 14, 2002. October 14, 2002. Hubbard and the Authority conducted extensive discussions and negotiations about the project and the Contract Documents, until the two parties came to final terms. Then, on October 14, the contract was signed.

During this entire course of discussions and negotiations, the QC specifications remained intact in the Contract Documents. Hubbard raised no question about them, they were not amended, nor was any effort made to delete or amend them. They are included in the Contract Documents bearing Hubbard’s signature and seal. For a period of approximately five months, Hubbard, first as a proposer, then as the Ccontractor, had documents clearly making it responsible for QC testing, and never attempted to change them or question them.

To date, Hubbard has refused to perform the required QC testing. Rather than delay or stop the project, the Authority has been conducting the testing and back charging Hubbard. In order to mitigate costs to Hubbard, the Authority has reduced the testing frequency from that specified and is utilizing existing field inspectors to perform the tests.

The Authority and its CM, LJRS Corporation, submit that Hubbard can look only to itself if it failed to include QC testing in its proposal. Certainly, the Authority should not be penalized for Hubbard's failure.

The Committee is respectfully requested to deny Hubbard’s claim.

The Authority further expands upon the above points in their rebuttal of Hubbard’s addendum to their initial position paper, and makes the following points:

1. Hubbard selectively quotes Mr. Bittner’s statements made during the pre-bid conference, but failed to question the apparent inconsistency between the specifications and Mr. Bittner’s statements.

2. Hubbard has not proven it did not have testing in its bid. During the hearing Hubbard did present a copy of their bid documents to the Committee, however, the Committee realized that this was new evidence not previously available to the Authority or URS, and returned it to Hubbard without reviewing the document.

3. Hubbard knew of the QC 2000 specifications months prior to the bid, even though they began appearing in the Department’s projects with the July lettings, and again Hubbard did not question the specification in the contract documents.

4. Hubbard’s suggestion that verbal statements can amend the contract documents is incorrect in light of the contract language and that in the request for proposals.

5. Just because the Authority made a mistake and did do some initial testing is no reason to ignore the specifications once that mistake is realized.

6. Hubbard is a well organized, sophisticated and experienced contractor with extensive bid preparation experience in an industry which is continually changing, would have questioned anything in the bid which was unclear.

7. If Hubbard had questions concerning the Quality Control Testing why wasn’t it brought up during the negotiating sessions between the bid and the award?


DISPUTE REVIEW COMMITTEE’S FINDINGS

After reviewing all the documents presented and listening to both parties’ presentations, the Committee finds that:

1. During the hearing both parties seemed to agree that the specifications, by themselves, assign the Quality Control Testing to the contractor.

2. Hubbard firmly believes that those specifications were modified by remarks made during the mandatory pre-bid conference by Mr. Bittner in both the May 1st and June 28, 2002, meetings. Specifically on page 23 of the May 1, 2002 meeting and page 19 of the June 28, 2002, meeting as follows:

3. May 1, 2002, “The Laboratory testing Law Engineering is providing laboratory testing for our projects on this contract, so we will be sending the usual items with that testing at the lab to Law. The usual items, concrete cylinders and such, will be sampled in the field and they will be sent to Law for Testing. Materials acceptance criteria matrix is the next thing on my list. Your project manual has a specific acceptance matrix located in the manual.”

4. June 28, 2002, “And under us we’ll have a group, a CEI group of local consultants who will provide inspection and engineers for us for the CEI on these projects. Laboratory testing is going to be done by Law Engineering. And we will be doing the normal items that we usually do; embankment concrete, cylinders and asphalt, and what have you.”

5. The two pre-bid meetings were held prior to the contractor quality control program becoming the specification for testing. This was a new specification with the Department as of July 1, 2002, and while meetings had been held and it had been being discussed within the industry for sometime, it did not come out as a requirement until July 1, 2002.

6. The request for proposals, Section 5.1, Instructions to Proposers, last paragraph states, “Comments, explanations, and responses provided at the conference shall not qualify or amend the terms of the Contract Documents unless confirmed in writing by addendum.”

7. There is no disclaimer in the pre-bid minutes which states that the only method approved to modify the plans is by addendum, and the only place in the pre-bid meetings where the contract plans are addressed is on page 11, of the May 1, 2002, meeting where it states, “and of course the documents will be final as they are the final word.”

8. Hubbard did not receive any quotations from testing suppliers at the time they were bidding this project.

9. As a new specification, it, like the OCIP requirement should have been a topic for discussion at the mandatory pre-bid meeting.

10. The Authority did not require a quality control plan from Hubbard within the 21 days specified in the contract documents and did do all required testing until early February 2003.

11. Hubbard did not have any money in their bid for the Quality Control Testing as outlined in the specifications.

12. Hubbard canvassed the other bidders on this project and determined that none of them had included any QC 2000 testing in their bids either.

13. Anecdotal evidence suggests that PCL Civil Constructors, another of the bidders, and the successful bidder on the segmental portion of the project apparently did not include any QC 2000 testing costs in their bid for that project and has a similar claim.

14. The Authority’s request for proposals, which deals with the pre-bid meeting is specific and states, “Comments, explanations, and responses provided at the conference shall not qualify or amend the terms of the Contract Documents unless confirmed in writing.”

15. It was apparent at the hearing that both sides have tried to partner through this Quality Control Testing issue to arrive at an equitable settlement, and while there have been negotiations and offers made, no resolution has yet been accomplished.


DISPUTE REVIEW COMMITTEE RECOMMENDATION

Based upon the information presented the Committee finds that the Authority is responsible for the cost expended for the Quality Control/Testing prior to February 28, 2003, and following that date Hubbard is responsible for the QC 2000 provisions and costs contained in the contract.

The Committee sincerely appreciates the cooperation of all parties and the information presented for its review in making this recommendation. The Disputes Review Committee’s recommendation should not prevent, or preclude, the parties from negotiating an equitable solution (should it be appropriate) to any issue pursuant to their partnering agreement.

Please remember that a response to the Committee and the other party of your acceptance or rejection of the recommendation is required within 15 days. Failure to respond constitutes an acceptance of this recommendation by the non-responding party.

I certify that I have participated in all meetings of this DRC regarding this issue and concur with the findings and recommendations.

Signed with the concurrence of all Committee members.
