Fundamentals of Construction Claims - William J. McConnell

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the Contractor, and the CDOT to conduct hearing within 30 days of the submittal issuance.

       DRB renders a “recommendation” within 10 days of the hearing.

       Parties can issue request for clarification/reconsideration of recommendation within 14 days of the DRB's recommendation.

       Either party can reject the DRB's recommendation within 30 days.

       Claimant to issue notice of intent to file “claim” to the Region Transportation Director within 60 days of the DRB's recommendation.

       Contractor submits claim package to the Region Transportation Director within 60 days of notice.

       Region Transportation Director renders a decision within 30 days of receipt of the claims package.

       Contractor can reject the Region Transportation Director's decision and issue an appeal to the CDOT's Chief Engineer within 60 days of the Region Transportation Director's decision.

       CDOT's Chief Engineer shall render its decision within 45 days of the appeal.

       Contractor can reject the CDOT's Chief Engineer's decision and trigger binding dispute resolution within 180 days of the Chief Engineer's decision.

       The claim is resolved via binding dispute resolution.

      A. AIA A401, Article 6, Claims and Disputes

      The AIA Document A401 – 2017, “Standard Form of Agreement Between Contractor and Subcontractor,” is the AIA's most commonly used form of agreement between a contractor and a subcontractor. Article 6, “Claims and Disputes,” of the A401 offers the following dispute resolution procedures:

       Claims shall be made promptly and per the terms of the subcontract agreement.

       Claims between the parties are subject to mediation as a condition precedent to binding dispute resolution. The request for mediation shall be in writing, delivered to the other party, and filed with the person or entity administering the mediation. The parties shall share the mediator's fees equally.

       A party can file for binding dispute resolution concurrently with the filing for mediation. Binding resolution shall be stayed pending mediation for a period of 60 days, unless a longer period is agreed upon by the parties or court order.

       The method of binding dispute resolution shall be arbitration, litigation, or otherwise selected within the A401 agreement. If no method is selected, claims shall be resolved by litigation in a court of competent jurisdiction.

      B. ConsensusDocs 750, Standard Agreement Between Constructor and Subcontractor

       In the event the project personnel from the constructor and subcontractor cannot resolve a dispute, direct discussions should be conducted between the parties' representatives that possess the necessary authority to resolve the matter.

       If the parties' representatives are not able to resolve the matter within 5 business days of the first discussion, the parties' representatives shall inform senior executives of the parties that resolution could not be reached.

       Upon receipt of such notice, the senior executives of the parties shall meet within 5 business days to endeavor to resolve the matter. If the dispute remains unresolved after 15 business days from the date of the date of the first discussion, the parties shall submit the matter to mediation.

       Mediation shall be convened within 30 business days of the matter first being discussed and shall conclude within 45 business days of the matter first being discussed. Either party may terminate the mediation at any time after the first session by written notice to the non-terminating party and mediator.

       The matter is resolved via binding dispute resolution via arbitration or litigation, whichever is selected. Note the 750 agreement has a prevailing party provision in terms of attorney fees.

      C. EJCDC E-523, Construction Subcontract Agreement (2018 Version)

      The EJCDC's E-523 contract form, “Construction Subcontract,” is the EJCDC's most commonly used form of agreement between a contractor and subcontractor. Article 12, “Claims and Dispute Resolution,” of the E-523 offers the following dispute resolution procedures:

       Subcontractor shall issue a notice of claim to the contractor within 30 days from the event giving rise to the claim, and for claims related to the prime contract, within 5 days.

       Either party may request mediation of any unresolved dispute. The mediation process must be concluded within 60 days of filing of the request.

       If the dispute is not resolved by mediation, each party is barred from further action to assert its claim after 30 days after termination of the mediation, unless, within this period of time, a party elects in writing to invoke dispute resolution or gives the other party written notice of its intent to submit the claim to a court of competent jurisdiction.

      The following is a list of dispute resolution provisions for the three most commonly used standard contract forms for owner–designer agreements. Note that each form allows the parties to edit the contract before execution, so it is important to review the exact dispute resolution provisions within the subject contract.

      A. AIA B101, Article 8, Claims and Disputes

      The AIA Document B101 – 2017, “Standard Form of Agreement Between Owner and Architect,” is the AIA's most commonly used form of agreement between an owner and an architect. Article 8, “Claims and Disputes,” of the B101 offers the following dispute resolution procedures:

       The architect or owner shall commence all claims and causes of action against the other within the period specified by applicable law, but not longer than 10 years after the date of substantial completion of the applicable project.

       Claims between the architect and the owner are subject to mediation as a condition precedent to binding dispute resolution. The request for mediation shall be in writing, delivered to the other party, and filed with the person or entity administering the mediation. The parties shall share the mediator's fees equally.

       A party can file for binding dispute resolution concurrently with the filing for mediation. Binding resolution shall be stayed pending mediation for a period of 60 days unless a longer period is agreed upon by the parties or court order.

       The method of binding dispute resolution shall be arbitration, litigation, or otherwise selected within the B101 agreement.

      B. ConsensusDocs 240, Standard Agreement Between Owner and Design Professional

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